CONSUMER PROTECTION

ACT
Weeks 12-13
Draft Student Version. Students are expected to do their own readings
and make their own summaries of cases and concepts as per the
readings
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CPA
• Goods or Services
• Defective Goods
• Services subject to deficiency
• Advantages of CPA?
• Territorial Jurisdiction? (Important)
Working of the CPA
• Purpose of the Act
• Consumer Disputes Redressal Agencies- District, State, National.
• An Act to provide for better protection of the interests of consumers
and for that purpose to make provision for the establishment of
consumer councils and other authorities for the settlement of
consumers' disputes and for matters connected therewith.
Who is a Consumer
Contradiction? Consumer
• University- conduct of exams? Pg 529 Banglia
• Supply of electricity on payment of consideration?
• Seed Growers agreement with National Seeds Corporation?
• Cases
M/s National Seeds Corpn Ltd v M
Madusudhan Reddy
• Appellant - M/s. National Seeds Corporation Ltd. (NSCL) is a Government of
India company. Its main functions are to arrange for production of quality
seeds of different varieties in the farms of registered growers and supply
the same to the farmers. The respondents own lands in different districts
of Andhra Pradesh and are engaged in agriculture/seed production. They
filed complaints with the allegation that they had suffered loss due to
failure of the crops/less yield because the seeds sold/supplied by the
appellant were defective. District Consumer Disputes Redressal Forums,
Kurnool, Mehboob Nagar, Guntur, Khamman and Kakinada allowed the
complaints and awarded compensation to the respondents. The appeals
and the revisions filed by the appellant were dismissed by the Andhra
Pradesh State Consumer Disputes Redressal Commission (for short, `the
State Commission') and the National Consumer Disputes Redressal
Commission respectively
• The appellant has questioned the orders of the National Commission,
which also implies its challenge to the orders of the State Commission
and the District Forums mainly on the following grounds:
• (a) the District Forums did not have the jurisdiction to entertain complaints
filed by the respondents because the issues relating to the quality of seeds
are governed by the provisions contained in the Seeds Act, 1966 (for short,
`the Seeds Act') and any complaint about the sale or supply of defective
seeds can be filed only under the Seeds Act and not under the Consumer
Protection Act, 1986 (for short, `the Consumer Act').
• (b) the District Forums could not have adjudicated upon the complaints
filed by the respondents and awarded compensation to them without
following the procedure prescribed under Section 13(1)(c) of the Consumer
Act.
• (c) the growers of seeds, who had entered into agreements with it, are not
covered by the definition of `consumer' under Section 2(d) of the
Consumer Act because they had purchased the seeds for commercial
purpose.
• It can thus be said that in the context of farmers/growers and other consumer of
seeds, the Seeds Act is a special legislation insofar as the provisions contained
therein ensure that those engaged in agriculture and horticulture get quality
seeds and any person who violates the provisions of the Act and/or the Rules is
brought before the law and punished. However, there is no provision in that Act
and the Rules framed thereunder for compensating the farmers etc. who may
suffer adversely due to loss of crop or deficient yield on account of defective
seeds supplied by a person authorised to sell the seeds. That apart, there is
nothing in the Seeds Act and the Rules which may give an indication that the
provisions of the Consumer Act are not available to the farmers who are
otherwise covered by the wide definition of `consumer' under Section 2(d) of the
Consumer Act. As a matter of fact, any attempt to exclude the farmers from the
ambit of the Consumer Act by implication will make that Act vulnerable to an
attack of unconstitutionality on the ground of discrimination and there is no
reason why the provisions of the Consumer Act should be so interpreted.
• "The trend of the decisions of this Court is that the jurisdiction of the
Consumer Forum should not and would not be curtailed unless there
is an express provision prohibiting the Consumer Forum to take up
the matter which falls within the jurisdiction of civil court or any other
forum as established under some enactment. The Court had gone to
the extent of saying that if two different fora have jurisdiction to
entertain the dispute in regard to the same subject, the jurisdiction of
the Consumer Forum would not be barred and the power of the
Consumer Forum to adjudicate upon the dispute could not be
negated."
• The definition of `consumer' contained in Section 2(d) of the Consumer Act
is very wide. Sub-clause (i) of the definition takes within its fold any person
who buys any goods for a consideration paid or promised or partly paid
and partly promised, or under any system of deferred payment. It also
includes any person who uses the goods though he may not be buyer
thereof provided that such use is with the approval of the buyer. The last
part of the definition contained in Section 2(d)(i) excludes a person who
obtains the goods for resale or for any commercial purpose. By virtue of
the explanation which was added w.e.f. 18.6.1993 by the Consumer
Protection (Amendment) Act 50 of 1993, it was clarified that the
expression `commercial purpose' used in sub-clause (i) does not include
use by a consumer of goods bought and used by him for the purpose of
earning his livelihood by means of self-employment.
• "It is in two parts. The first deals with goods and the other with services. Both parts first
declare the meaning of goods and services by use of wide expressions. Their ambit is
further enlarged by use of inclusive clause. For instance, it is not only purchaser of goods
or hirer of services but even those who use the goods or who are beneficiaries of
services with approval of the person who purchased the goods or who hired services are
included in it. The legislature has taken precaution not only to define `complaint',
`complainant', `consumer' but even to mention in detail what would amount to unfair
trade practice by giving an elaborate definition in clause (r) and even to define `defect'
and `deficiency' by clauses (f) and (g) for which a consumer can approach the
Commission. The Act thus aims to protect the economic interest of a consumer as
understood in commercial sense as a purchaser of goods and in the larger sense of user
of services. The common characteristics of goods and services are that they are supplied
at a price to cover the costs and generate profit or income for the seller of goods or
provider of services. But the defect in one and deficiency in other may have to be
removed and compensated differently. The former is, normally, capable of being
replaced and repaired whereas the other may be required to be compensated by award
of the just equivalent of the value or damages for loss."
• The reasons assigned by the National Commission in the
aforementioned three cases are similar to the reasons assigned by the
State Commission which were approved by this Court in Maharashtra
Hybrid Seeds Company Ltd. v. Alavalapati Chandra Reddy (supra) and
in our view the proposition laid down in those cases represent the
correct legal position.
• 40. In the result, the appeals are dismissed. The appellant shall pay
cost of Rs.25,000/- to each of the respondents. The amount of cost
shall be paid within a period of 60 days from today.
Other examples
• Complaint against Nursing Home must be dismissed in tot if medical
negligence not made out
• Deficiency in service-wrong Exam
• Is Criminal Proceeding launched by the complainant on the same
cause of action held to be no bar to maintainability of complaint
under the Act, 1986.
• Does CPS have jurisdiction to pass interim order against an action
taken under S13 of the Securities and Reconstruction of Financial
Assets and Enforcement of Securities Interest Act? S14 of the Act?
Compensation
• Pre-requisite/Condition> Suffers loss or injury by complainant.
• Reasons for the Order.
• Evidence.
• Speaking Order
• Quorum
• Procedural Rules re President etc.
Ex Parte Order
• Order made without presence of opposite party.
• Other party may not even have notice?
• Civil Procedure Code>>Power to set aside Ex Parte Order?
Dismissal of complaint in default
• Complainant failed to appear.
• Kamlesh Bansal v Balaji Land Traders.
Ethiopian Airlines Case
State , National Commissions
• Composition, Disqualification, Powers.
• A Special Law overrides General Law eg the Consumer For would have
no jurisdiction in cases dealt with under some Special Law (see case
pg 524)
• Eg GM Telecom v M Krishnan
• Power and Procedures- eg Power to Review.
• Power to set aside ex parte orders
• Appeals from National Commission to Supreme Court
• What happens if no Appeal within timeframe?
Enforcement of Orders
• (Remember Limitation Period filing a complaint)
• Interim orders- Attachment of Property
• Vexatious complaints
• Penalties for non-compliance.
• Time Limit for Making Appeal
Buyer of Goods for Consideration
• Is a Consumer?
• Purchaser for re-sale or commercial purpose a consumer?
• Purchase of a car as a means of self-employment a Consumer?
• Car for Directors Use
• Computer for Office Use
Service
• "service" means service of any description which is made available to
potential users and includes, but not limited to, the provision
of facilities in connection with banking, financing insurance,
transport, processing, supply of electrical or other energy, board or
lodging or both, housing construction, entertainment, amusement or
the purveying of news or other information, but does not include the
rendering of any service free of charge or under a contract of
personal service;
Service Without Consideration
• Cases- Housing Board of Naval Personnel
• Others
• Section 2(1)- service includes rendering service free of charge?
Deficiency in Service
• 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;
Kishori Lal v Chairman, ESI Corporation
• Service by medical practitioners of hospitals/nursing homes>>service
rendered free of charge?
Unfair Trade Practice- Awaz v RBI
• Housing Construction
• Telephone- loss of business, delay installation, out of order, negligent
disconnection, Inflated Bills.
• Railways- late departure, passengers accidental death,, platform
without light, theft of parked car, water not available in toilet.
• Airlines
• Electricity
• Insurance
• Bank
• Medical Services
• Tailor
• Postal Services
• A Complaint Petition was filed by minor Harjot Ahluwalia through his
parents Mrs. Harpreet Ahluwalia and Mr. Kamaljit Singh Ahluwalia before
the Commission alleging that the minor was being treated at a Nursing
Home in Noida in December, 1993. As there was no improvement in his
health the said minor was brought to M/s. Spring Meadows Hospital,
appellant in Civil Appeal No. 7708 of 1997 on 24th of December, 1993. In
the hospital the patient was examined by the Senior Consultant
Paediatrician, dr. Promila Bhutani and on the advice of the said doctor the
patient was admitted as an in-patient in the hospital. The doctor made the
diagnosis that the patient was suffering from typhoid and intimated the
parents that medicines have been prescribed for the treatment of the
typhoid fever. On the 30th of December, 1993 at 9.00 a.m. Miss Bina
Matthew, nurse of the hospital asked the father of the minor patient to get
the injection - In Lariago - to be administered intravenously to the minor
patient.
• The patient, immediately on being injected collapsed while still in the lap of his mother. it
was further alleged that before administering the injection the nurse had not made any
sensitive test to find out whether there would be any adverse reaction on the patient.
Seeing the minor child collapse the parents immediately called for help and the Resident
Doctor Dr. Dhananjay attended the patient. Said Dr. Dhananjay told the parents that the
child had suffered a cardiac arrest and then by manually pumping the chest the Doctor
attempted to revive the heartbeat. The hospital authorities then summoned an
Anaesthetist, Dr. Anil Mehta who arrived within half an hour and then started a
procedure of manual respiration by applying the oxygen cylinder and manual Respirator.
In the meantime Dr. Promila Bhutani also reached the hospital and the minor child was
kept on a device called manual Respirator. Though the child was kept alive on the manual
ventilator but the condition of the child did not show any improvement. In course of
treatment as the minor's platelets count fell, a blood transfusion was given but still no
improvement could be seen. Dr. mehta, therefore, intimated the parents that the
hospital does not have the necessary facilities to manage the minor child and the should
be shifted to an intensive Care Unit equipped with an Auto Respirator.
• The complainant alleged that the child on account of negligence and
deficiency on the part of the hospital authorities suffered irreparable
damages and could survive only as a mere vegetative and accordingly
claimed compensation to the tune of Rs. 28 lacs.
• On behalf of the appellants objection was filed before the
commission taking the stand that no payment having been made it
cannot be said that the services of the hospital having been availed
for consideration and as such the complainant is not a consumer
within the definition of 'Consumer' in the Consumer Protection Act,
1986. It was further stated that there has been no deficiency or
negligence in service on the part of the doctors of the hospital and
the negligence, if any, is on the part of the nurse who misread the
prescription
• Miss Bina Matthew the nurse who injected the Lariago injection to
the child, who was opposite party No.2 before the Commission field
her objections station therein that she is a qualified nurse and had
exercised all diligence and care in discharging her duties. It was
further stated that the patient was under the treatment of Dr. Bhutani
who had the duty to decide the course treatment and as nurse she
was only working under her control and direction. She also stated
that as the patent was already taking lariago syrup and when the
doctor advised that injection should be given she thought that the
same lariago injection to be given and it was the duty of the duty of
the doctor to give the injection and take all care.
• The insurer-opposite no. 3- which is appellant in Civil Appeal No. 7858 of
1997 contested the claim and took the defence that there has been no
deficiency in service on the part of the reinsurance company and the
provisions of the Consumer Protection Act could not be invoked against the
insurer. According to the insurer the insurance company issued medical
establishment professional negligence errors and omissions insurance
policy and the terms and conditions of the policy would indicate that the
liability of the insurer, if any, is to the extent of 12,50,000/- and not beyond
the same and further the insurer cannot be made liable when the liability
in question has arisen on account of negligence or deliberate non-
compliance of any statutory provisions or intentional disregard o the
insured's administrative management of the need to take all reasonable
steps to prevent the claim.
• The learned counsel for the appellant appearing for the hospital contended
that the complaint having been filed by the minor child who was the in-
patient in the hospital through his parents the said minor child can only be
the consumer and the parents cannot claim any compensation under the
Consumer Protection Act for the mental agony they have suffered and as
such the award of compensation to the tune of Rs. 5 lacs in favour of the
parents is beyond the competence of the Commission. The learned counsel
then urged that under the Consumer Protection Act the consumer to
whom services has been provided can make a complaint and in the case in
hand the services having been provided to the minor patient, he becomes
the consumer and consequently no compensation can be awarded in
favour of the parents of the consumer and according to the learned
counsel it is apparent from the provisions of Section 12(1)(a) of the
Consumer Protection Act
• The minor child being the patient who was admitted into the hospital for
treatment can the parents of the child be held to be consumers so as to
claim compensation under the provisions of the Consumer Protection Act?
• 2. Is the commission under the Act entitled to award compensation to the
parents for mental agony in view of the powers of the commission under
Section 14 of the Act?
• 3. Even if the child as well as the parents of the child would come under
definition of the 'consumer' under Section 2(1) (d) of the Act whether
compensation can be awarded in favour of both the consumers or
compensation can be awarded only to the beneficiary of the services
rendered, who in the present case would be child who was admitted into
the hospital?
• In the present case, we are concerned with clause (ii) of Section 2(1)(d). In
the said clause a consumer would mean a person who hires or avails of the
services and includes any beneficiary of such services other than the
person who hires or avails of the services. When a young child is taken to a
hospital by his parents and the child is treated by the doctor, the parents
would come within the definition of consumer having hired the services
and the young child would also become a consumer under the inclusive
definition being a beneficiary of such services. The definition clause being
wide enough to include not only the person who hires the services but also
the beneficiary of such services which beneficiary is other than the person
who hires the services, the conclusion is irresistible that both the parents
of the child as well as the child would be consumer within the meaning of
Section 2(1)(d)(ii) of the Act and as such can claim compensation under the
Act.
• If the parents of the child having hired the services of the hospital are
consumer within the meaning of Section 2(1)(d)(ii) and the child also is
consumer being a beneficiary of such services hired by his parents in the
inclusive definition in Section 2(1)(d) of the Act, the Commission will be
fully justified in awarding compensation to both of them for the injury each
one of them has sustained. In the case in hand the Commission has
awarded compensation in favour of the minor child taking into account the
cost of equipments and the recurring expenses that would be necessary for
the said minor child who is merely having a vegetative life. Te
compensation awarded in favour of the parents of the minor child is for
their acute mental agony and the life long care and attention which the
parents would have to bestow on the minor child.
Indian Medical Asscn. v. V.P. Shantha & Ors. (1995)
6 SCC 651
• 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'].
• 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."
• 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."
• 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."
• 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."
• 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).
• 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]
• 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
• 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.
• 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
• 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.
• 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.
• (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.
AVTAR SINGH reading materials
• Emailed to students.
• : know the meaning of a consumer, goods and services and
• ; explain the consumer redressal system in India; realise the rights
and responsibilities of consumers;
• understand the procedures for filing the complaints in the consumer
courts;
• “A busy doctor bought 3 pairs of trousers at a discounted price of Rs.
2000/- each, during a sale from a well known retail brand from a
particular outlet. However to his utter surprise, the fabric just gave
way within a few wears, even before it was washed. On his complaint
a person in-charge of the company showroom took back one pair and
said, it would be sent to the company’s quality cell for testing. A year
has passed and he has neither heard from the company, nor got back
his trousers.
• Should the doctor not ask for his money and also for compensation
for all the discomfort undergone in purchasing the trousers? The
doctor has the right to seek redressal as a consumer.”
Adjournments under CPA?
• Can CPA give adjournments?
Questions
• Who is not a consumer?
• 2. Why must the consumers take the bill on purchase of a product?
• 3. What is VAT?
• Give the full form of CPA, ECA and SWMA?
• 2. How can a foreign agency sell its product in India?
• Name the government councils which deal with consumer grievances
at national and state levels?
• 2. Name the consumer courts at national and state and district levels?
• 3. When a complaint can be filed in the consumer court?
• Mention the appropriate consumer right to file a complaint with regard to the
following
• 1. A person falling sick after consuming a packaged food item.
• 2. A seller forcing a buyer to purchase a certain brand of goods and not showing
other varieties of goods.
• 3. Samir wants to buy a computer and wants to know the exact configuration
from the seller.
• 4. Rekha was cheated by a seller and wants to file a complaint.
• 5. Reshma has gone to a district consumer forum against the local hospital to
seek compensation for wrong diagnosis for which she had to spend Rs. 2 lakhs
unnecessarily.
• 6. You have requested the concerned department of Delhi Government to give
you booklet on consumer protection act.
• What should you do as a responsible consumer in the following cases
(a) To purchase an electric iron from among several brands available
(b) You are purchasing bread and fruit jam.
• (c) The seller gives you the items in a polythene packet.
• 2. Give two reasons of delay in delivery of justice with respect to
consumer grievances?