Kerala High Court : Medical Services Fall within Ambit of Consumer Protection Act, 2019

In a significant decision, the Kerala High Court has recently ruled that medical services fall within the purview of the term 'service' defined under Section 2(42) of the Consumer Protection Act, 2019.

 

Observing so, Justice N. Nagaresh dismissed a plea filed by a group of doctors who prayed to declare that the consumer fora under the Consumer Protection Act, 2019 do not have jurisdiction to take cognizance of complaints in respect of medical negligence and deficiency in medical service.

 

"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," the Court noted in its order.

 

The primary argument in the petition was that medical profession and practice did not come within the purview of the term 'service' defined under Section 2(42) of the Consumer Protection Act, 2019.

 

A complaint was filed against the petitioner-doctors in the District Consumer Disputes Redressal Commission, Kannur alleging that the complainant was diagnosed with a cataract in her left eye by the first petitioner. However, no relief was granted, in fact, the complainant was sent to other doctors.

 

After the treatment by these doctors, who are also petitioners herein, the complainant lost sight of her left eye. She alleged that the loss of her eyesight was due to medical negligence and sought compensation of ₹ 32,52,000/- before the District Consumer Forum.

 

Senior Advocate S. Gopakumaran Nair appearing for the petitioners contended that the Draft Bill of the new Consumer Protection Act, 2019 had included the health sector among the illustrations of facilities that are treated as 'service' in Section 2(42) However, he pointed out that the health sector was removed from among the illustrations under Section 2(42) and argued that this was because the lawmakers intended to exclude medical service/profession from the purview of the new Act.

 

Justice Nagaresh noted that the Apex Court in Indian Medical Association v. V.P. Shantha & Ors. [(1995) 6 SCC 651] 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)(o) of the Act, 1986 Act have almost the same meaning and implications.

 

The only difference in the definition clauses was that Section 2(42) of the 2019 Act 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.

 

So, the Court rejected the contention of the Petitioners, stating external aids like Draft Bills can be taken for interpreting a statutory provision only when there is ambiguity in the express provisions of the statute.

Further, it was held that the legislative intent of Section 2(42) of the Consumer Protection Act, 2019 was to make 'services' as inclusive as possible.

 

"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."

 

As such, the Court dismissed the petition and observed that medical services would fall within the ambit of Section 2(42) unless the service is free of charge or is under a contract of personal service.

 

Advocates Sooraj T. Elenjickal, Renoy Vincent, Arun Roy, Helen P.A and Shahir Showkath Ali also represented the petitioners while the respondents were represented by ASGI S. Manu and Central Government Counsel V. Gireesh Kumar.

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