Appeal against Consumer Courts against doctors dismissed: Kerala High Court

"A reading of the inclusive part in Section 2(42) would show 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'. The definition is inclusive and not exhaustive. Therefore, all services which are made available to potential users would fall under Section 2(42), except those services rendered free of charge or under a contract of personal service. The words "but not limited to" appearing in Section 2(42) clarifies the intention of the Parliament. The medical services therefore would indeed fall within the ambit of Section 2(42), unless of course the service is free of charge or is under a contract of personal service," noted the Kerala High Court bench comprising of Justice N Nagaresh.

The main case concerned the allegation against the doctors in the District Consumer Forum, Kannur brought by a complainant, who lost sight of her left eye. She was diagnosed with cataract in her left eye and had consulted the 1^st petitioner doctor for this purpose. It had been alleged by the complainant that her loss of eye sight was due to medical negligence and for this the complainant had sought a compensation of Rs 32,52,000.

After receiving the notice, the petitioner doctors had challenged the maintainability of the complaint arguing that medical service will not fall within the ambit of Section 2(42) of the Act, 2019. However, the I.A had been dismissed by the District Commission and the revision petition had been dismissed by the State Commission.

However, the petitioner doctors approached the High Court seeking to quash the orders of the District and State Consumer Disputes Redressal Commissions, as without jurisdiction and hence illegal.

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It had further been prayed by the petitioners that the Consumer Forum under the Consumer Protection Act, 2019, do not have the jurisdiction for taking 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 under Section 2(42) of the Consumer Protection Act, 2019.

The senior counsel, on the behalf of the petitioner doctors, argued that the medical service/practice is not included in the illustrations in the inclusive definition of the term 'service' under Section 2(42) of the Consumer Protection Act, 2019 and hence the intention of the Parliament is clear that the Parliament did not want to include medical services/profession within the purview of the term 'service'.

He had further pointed out that the Draft Bill of the new Consumer Protection Act, 2019 had included health sector among the illustrations of facilities that are treated as 'service' in Section 2(42) of the new Act. However, the health sector was removed from among the illustrations under Section 2(42) and the obvious reason is that the lawmakers intended to exclude medical service/profession from the purview of the new Act, contended the petitioners' counsel.

Reliance was made to the Supreme Court judgment in the case of Indian Medical Association v. V.P. Shantha and others, wherein the top court had declared the law and held that the medical practice/profession would also come within the purview of the definition f the term 'service' under Section 2(1)(o) of the Act, 1986. Referring to this, the counsel argued in the view of the law laid down by the Apex Court in the context of Act, 1986, the Parliament should have specifically excluded the term 'medical profession/practice' from the purview of Section 2(42) of the new Act, 2019.

The fact that 'medical profession/practice' has been omitted by the Parliament from the list of facilities like banking, financing, insurance, etc. from the illustrations of the term 'service' under Section 2(42) of the Act, 2019 despite the declaration of law by the Hon'ble Apex Court clearly discloses the intention of the Parliament not to include 'medical profession/practice' within the definition of 'service' as defined under the new Act, 2019, argued the counsel for the doctors.

It had further been argued by the doctors' counsel that compelling the doctors to leave their place of practice for defending consumer complaints at distant places where complainants ordinarily resides, would adversely affect medical services as a whole and that is why; the lawmakers were convinced about the unfairness and injustice of adjudicating the complicated disputes relating to
medical negligence/deficiency of medical services in summary proceedings under the Consumer Protection Act.

The counsel further pointed out that the Consumer Protection Courts do not have medical experts as Members, except in the National Commission and claimed that the District and State Commission should have upheld the arguments of the petitioner doctors.

After taking note of the submissions, the High Court referred to the top court verdict in the case of V.P.Shantha and observed that in that case the Apex Court had 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 under Section 2(1)(0) of the Act, 1986.

The Act, 1986 had been substituted by the Consumer Protection Act, 2019. The HC noted that "Both, Section 2(42) of the Act, 2019 and Section 2(1)(o) of the Act, 1986, more or less have the same meaning and implications. The difference in the definition clauses is that Section 2(42) of the Act, 2019 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."

"A reading of the inclusive part in Section 2(42) would show 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'. The definition is inclusive and not exhaustive," noted the Kerala HC.

"Therefore, all services which are made available to potential users would fall under Section 2(42), except those services rendered free of charge or under a contract of personal service. The words "but not limited to" appearing in Section 2(42) clarifies the intention of the Parliament. The medical services therefore would indeed fall within the ambit of Section 2(42), unless of course the service is free of charge or is under a contract of personal service," further opined the bench.

The bench also referred to the contention of the petitioner doctors that the Draft Bill of the new Consumer Protection Act of 2019 originally included the "Health Sector" and later excluded it in the Act, 2019 as the Parliament wanted to exclude it from the purview of Consumer Protection Act, 2019.

At this outset, the HC bench observed, "The argument, though looks attractive, is unsustainable in view of the well settled principles of interpretation of statutes. External aid like Draft Bill can be taken for interpreting a statutory provision only when there is ambiguity in the express provisions of the statute. In the case of Section 2(42), the definition is clear and devoid of any ambiguity whatsoever."

"Furthermore, the Hon'ble Apex Court has already interpreted the identical provision in the Act, 1986 and has held that the Act would take in Medical Services also. The argument based on Draft Bill is therefore only to be rejected," added the judgment.

Referring to the fact that the District and State Commission had dismissed the challenge to the maintainability of the complaint, the HC bench agreed to it and observed, "The contention of the petitioners that Health Sector has been deliberately excluded by the Parliament while enacting the new law, cannot be accepted."

To read the High Court order, click on the link below.