Major setback to medical fraternity! Doctors Still Liable under Consumer Protection Act
Supreme Court of India
New Delhi: In a landmark order, the Supreme Court has refused to reconsider the 1995 judgment in the case of Indian Medical Association v VP Shantha, which brought medical professionals under the ambit of the Consumer Protection Act, 1986 (as re-enacted in 2019).
Although earlier this year a two-judge bench of the Apex Court had observed that the 1995 judgment required reconsideration, the three-judge bench disposed of the reference made against the 1995 order, observing that it was unnecessary.
Medical Dialogues had earlier reported that on May 14, the Supreme Court bench comprising Justices Bela Trivedi and Pankaj Mithal had observed that legal professionals were not covered by the Consumer Protection Act. While holding the same, the bench also observed that the 1995 judgment in VP Shantha needed to be reconsidered.
However, on Thursday, the Apex Court bench comprising Justices B.R. Gavai, Prashant Kumar Mishra and K.V. Vishwanathan held that the reference was not necessary. The bench also questioned the necessity of making such a reference in respect of another profession since the Court had already held that the legal profession was sui generis.
As per the latest media report by Live Law, a three-judge Supreme Court bench observed on Thursday,
"The question before the division bench was whether legal professionals could be covered by the provisions of the Consumer Protection Act. While considering said question, the Court came to a specific conclusion that the legal profession is sui generis, that is unique in nature and cannot be compared with any other profession. The Court also held that service hired or availed of an advocate is a service under contract of personal service...."
"While considering the said question, the Court was of the view that in the case of Shantha, where the court was considering question of whether medical practitioners would be covered under the Consumer Protection Act, requires to be revisited. The division bench observed that the question as to whether a profession could be treated as business or trade and therefore, covered within the ambit of the definition under Section 2(1)(o) [service] required a revisit. We find that the issue before the Court was with regards to the legal profession and Court in unequivocal terms came to a conclusion that the legal profession is not covered by the provisions of Consumer Protection Act. Since the Court came to the aforesaid finding, irrespective of the finding of this Court in Shantha, the reference was not necessary. The question as to whether the other professionals excluding legal profession could be covered by the Consumer Protection Act can be considered in appropriate cases, having a factual foundation... In view of the matter, we dispose of the reference," it further noted.
Order by the Two-Judge Bench:
Back in May this year, the Supreme Court had pointed out the requirement of revisiting the 1995 judgment in the case of Indian Medical Association v VP Shantha, which brought medical professionals in the country under the purview of the Consumer Protection Act.
The judgment in question in the case of Indian Medical Association vs. V.P. Shantha & Others was delivered by a three-judge Bench of the Supreme Court. It was held by the Apex Court that the wide amplitude of the definition of 'service' in the main part of Section 2(1) (o) would cover the services rendered by Medical Practitioners within the said Section 2(1)(o).
Section 2(1)(o) of The Consumer Protection Act says, “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.
In the 1995 judgment, the Supreme Court bench had concluded that 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.
"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," Supreme Court had held in the 1995 order.
However, a two-judge bench of the Supreme Court comprising Justices Bela Trivedi and Pankaj Mithal had observed that the 1995 judgment required reconsideration "having regard to the history, object, purpose and the scheme of the CP Act and in view of the opinion expressed by us hereinabove to the effect that neither the “Profession” could be treated as “business” or “trade” nor the services provided by the “Professionals” could be treated at par with the services provided by the Businessmen or the Traders, so as to bring them within the purview of the CP Act."
The Court made such observation while considering a batch of pleas concerning the legal question of whether a complaint alleging "deficiency in service" against Advocates practising Legal Profession, would be maintainable under the Consumer Protection Act, 1986 as re-enacted in 2019.
The bench noted in respect of the legal profession that role of the Advocates was unique and could not be compared with any other profession. Amongst the arguments put before the Court, it was also submitted that just because the medical profession had been included under the Act through VP Shantha's case, by the same logic, the legal profession could not be included.
Sharing a status update regarding the case, the Indian Medical Association (IMA) mentioned that while the Supreme Court bench disposed of the D K Gandhi case since it dealt with the lawyers only, the counsel for IMA, Advocate Prabhas Bajaj argued that the 1995 judgment in the case of V P Shantha was the case of IMA. Thereafter the Supreme Court observed that it would consider the matter whenever it comes up in appropriate case.
"In legal parlance the court has granted liberty to IMA to raise the issue separately. Accordingly, IMA has finalised all preparations to file the affidavit in the coming week," IMA mentioned in its release dated 07.11.2024.
