86

CHAPTER - 3

MEDICAL NEGLIGENCE AND IT’S RELATION WITH

CONSUMER PROTECTION ACT, 1986

IN INDIA THE right to health care and protection has been recognized
since early times. A number of laws have been enacted to protect the health
interests of the people such as the Indian Penal Code, 1860, the Fatal Accidents
Act, 1855, the Indian Medical Degree Act, 1916, etc. Complaints of medical
negligence have assumed a wider dimension as the incidents have increased due
to the opening of nursing homes, central government health services
dispensaries and employee’s state insurance hospital, etc. Though the
parliament has passed the Indian Medical Council Act in 1956 and other
corresponding legislations governing various branches of medicine. These
legislations only provide for the registrations and regulation of the conduct of
doctors, hospitals and nursing homes, and have failed to protect the interests of
persons who have suffered on account of negligence or deficiency on the part of
medical practitioners. This field which remains untouched by the Medical
Council Act(s) is covered by the law of tort in general, and now by the
Consumer Protection Act, 1986.1

In V.N. Shrikhande v. Anita Sena Fernandes,2 the Supreme Court had

held that in cases of medical negligence, no straitjacket formula can be applied
for determining as to when cause of action has accured. Each case is to be
decided on its own facts. If the effect of negligence on the doctor’s part or any
person associated with him is patent, the cause of action will be deemed to have
arisen on the date when the act of negligence was done. If, on the other hand,
the effect of negligence is latent, then the cause of action will arise on the date
when the patient or his representative-complainant discovers the harm/injury
caused due to such act or the date when the patient or his representative-
complainant could have, by exercise of reasonable diligence discovered the act
constituting negligence.

1. Thakur Shweta and Jaswal Vikram Singh, Medical Negligence in India, (2013) 72.
2. (2011) 1 SCC 53.
 87

The liability of medical professionals in India under Consumer Law is of

recent origin. From the last few decades, attention has turned to the quality of
health services. Consumer’s attention has turned to the quality of health
services. Consumers, i.e. patients do not have only right to access health care
but also have right to receive quality treatment. This Act intended to protect a
large body of consumer’s from exploitation. It provides an alternative system of
consumer justice by summery trial. So it is here very important to understand
the concept of consumer and mechanism for adjudication of medical negligence
under Consumer Protection Act, 1986.3

We are all consumers in one form or another. But in the present socio-
economic scenario, we find that the consumer is a victim of many unfair and
unethical tactics adopted in the market-place. The untrained consumer is no
match for the businessman marketing goods and services on an organized basis
and by trained professionals. He is very often cheated in the quality, quantity
and price of goods or services. The consumer who was once the king of the
market has become the victim of it. He is not supplied adequate information as
to the characteristics and performance of many goods and suffers due to the
unfairness of many one-sided standard forms of contracts. The modern
economic, industrial and social development have made the notion of freedom
of contract largely a matter of fiction and an empty slogan so far as many
consumers are concerned.

The caveat emptor-let the buyer beware doctrine of the law concerning
the sale of goods, assumed that the consumer was responsible for protecting
himself and would do so by applying his intelligence and experience in
negotiating the terms of any purchase.4 That principle may have been
appropriate for transactions conducted in village markets. In early times, the
consumer may have been able to protect himself since the products were less
sophisticated and could be inspected before purchase. But now the conditions
have changed. Many modern goods are technological mysteries. The consumer
knows little or nothing about these highly sophisticated goods. In real life,

3. Id., at 72-73.
4. Smith Peter & Swann Dennis, Protecting the Consumer – An Economic and Legal
Analysis (1979), 8-9.
 88

products are complex and of great variety and consumers and retailers have
imperfect knowledge. The principle of caveat emptor, thus, has ceased to be
appropriate as a general rule. The consumer needs protection by law when
goods fail to live up to their promises or indeed causes injury.5

With globalization and development in the international trade and

commerce, there has been substantial increase of business and trade, which
resulted in a variety of consumer goods and services to cater to the needs of the
consumers. In recent years, there has been a greater public concern over the
consumer protection issues all over the world. Talking into account the interest
and needs of consumers in all countries, particularly those in developing
countries, the consumer protection measures should essentially be concerned
with-

a) the protection from hazards to health and safety;

b) the promotion and protection of economic interests;
c) access to adequate information;
d) control on misleading advertisements deceptive representation;
e) consumer education;
f) effective consumer redress.6

The consumer deserves to get what he pays for in real quantity and true
quality. In every society, consumer remains the center of gravity of all business
and industrial activity. He needs protection from the manufacturer, producer,
supplier, wholesaler and retailer.7

The consumer policy can no longer be viewed solely at the national level.
Since the world economy has become so interdependent, national consumer
protection policies have now acquired international dimensions.8 This is mostly
due to the international character of business practices, in that the marketing of
goods and services is often done on a multinational basis and, in many cases, by

5. Ibid.
6. United Nations, General Assembly – Consumer Protection – Resolution No. 39/248,
dated 9-4-1985, Para 3.
7. Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225.
8. Economic and Social Council – International Co-operation and Co-ordination within
the United Nations System – Consumer Protection – Report of the Secretary-General,
(27-5-1983), 5.
 89

transnational corporations, and also to the fact that the problem encountered by
consumers are often not exclusive to any one country. 9 It is, therefore, pertinent
to state briefly some recent international developments in this field.

Lately, Indian society is experiencing a developing alertness regarding

patient’s rights. This trend is clearly apparent from the recent spurt in litigation
relating to medical professional or establishment liability, claiming redressal for
the suffering caused due to medical negligence, vitiated consent, and breach of
confidentiality arising out of the doctor-patient relationship. The patient-
centered initiative of rights protection is required to be appreciated in the
economic context of the rapid decline of State spending and massive private
investment in the sphere of the health care system and the Indian Supreme
Court’s painstaking efforts to constitutionalize a right to health as a fundamental
right. As of now, the adjudicating process with regard to medical professional
liability be it in a Consumer Forum or a regular civil or criminal court,
considers common law principles relating to negligence, vitiated consent, and
breach of confidentiality. However, it is equally essential to note that the
protection of patient's right shall not be at the cost of professional integrity and
autonomy. There is definitely a need for striking a delicate balance. Otherwise,
the consequences would be inexplicable.

Any person who buys goods and avails serves for his/her use for
consideration is a consumer. However, if the goods are purchased for resale or
any commercial purpose, then the buyer is not a consumer and cannot avail the
protection under Consumer Protection Act.10 A complaint is an allegation in
writing made by a Complainant, i.e., a consumer that he or she has suffered loss
or damage as a result of any deficiency of service.11Deficiency of service means
any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or
manner of performance that 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.12A consumer or
any recognized consumer association, i.e., voluntary consumer association

9. Ibid.
10. The Consumer Protection Act 1986, section 2(1) (d).
11. Id., at section 2(1) (c).
12. Id., at section 2(1) (g).
 90

registered under the Companies Act, 1956 or any other law for the time being in
force, whether the consumer is a member of such association or not, or the
Central or State Government. One or more consumers, where there are
numerous consumers having the same interest. In case of death of a consumer,
his legal heir or representatives.13

3.1 MEANING OF CONSUMER

Anyone who buys goods and avails services for his/her use for
consideration is consumer. Any user of such goods and services with the
permission of the buyer is also a consumer. Ordinarily every person is a
consumer because he uses or consumes economic goods and services. A person
is not only a consumer when he buys and uses groceries but he is also a
consumer when he makes use of educational opportunities offered in a school or
obtain legal advice from a lawyer or a medical services from his physician.
Therefore, a consumer is a person who engages himself in the process of
spending money and using economic goods and service.14

Market is virtually a composition of three components: Producer or

Manufacturer, Vendor or Distributor and Customer or Purchaser. Term
Consumer has been defined in many statues such as the (English) Fair Trading
Act, 1973, the Unfair Contract Terms Act, 1977, The Model Consumer Credit
Act, 1973, The Consumer Protection Act, 1986.

Term Consumer has been defined in the (English) Fair Trading Act,
1973 as one who does not conduct in the course of business carried on by him
but who deals with someone who does.15

The word Consumer is a comprehensive expression. It extends from a

person who buys any commodity to consumer either as eatable or otherwise
from a shop or business house. In oxford dictionary a Consumer is defined as a
purchaser of goods or services. Section 12(1) (c) of the Unfair Contract Terms
Act, 1977 adds the requirement of consumer that the goods must be of the type
ordinarily supplied for private use or consumption. The Model Consumer Credit

13. Id., at section 2(1) (b).

14. Giri, H.N., Consumer, crime and the Law, (1987) 5.
15. The (English) Fair Trading Act, 1973, section 137(2)
 91

Act, 1973 Considers Consumer a natural person, who seeks or acquires goods,
service or money for personal, family or household use.

The expression Consumer under Consumer Protection Act, 1986 covers:

a) One who buys goods for a consideration;

b) One who obtain goods on hire, purchase or lease;
c) One who use the goods with the permission of buyer of goods;
d) One who hires or avails of any service for a consideration;
e) One who uses the service with the permission of the person who has
hired the service; and
f) One who obtains service on deferred payment basis, i.e., one hire-
purchase or on lease?16

The purchaser of goods for commercial purpose is not a consumer

under the Consumer Protection Act, 1986.

In order to decide whether the purchase of goods is for commercial

purpose or for self-employment, the following principles is to be kept in mind.

i. If a person is carrying on business on large scale and he purchase goods

for earning large profit, the purchase is for commercial purpose, and
ii. If a person purchase goods for self-employment to earn livelihood and
he is engaged in small activity, it will not be a purchase for commercial
purpose.

So Consumer is a person who acquires consumer goods or services

primarily for his personal use or for the use in his personal household.17

3.2 TYPES OF CONSUMER

There are two types of consumers, VIZ., Consumer of goods and

consumer of services.

The word Goods have been defined by Section 2 (1) (i) of the Consumer
Protection Act, 1986 and have been assigned the same meaning as in the Sale of
Goods Act, 1930 which read as under:

16. The Consumer Protection Act, 1986, section 2(1) (d).

17. Vijay Narayan Aggarwal v. M/S Chowgule Industries Ltd., 1993 (2) CPR 231 (N.C.).
 92

Goods means every kind of movable property other than actionable

claims and money; and includes stock and shares, growing crops, grass, and
things attached to or forming part of the land which are agreed to be served
before sale or under the contract of sale.18

A person claiming himself as a consumer of goods should bring the

goods for consideration, i.e. there must be a sale transaction between a seller
and buyer. The sale must be of goods and goods must be bought for a
consideration. Any person who uses the goods with approval of the buyer is also
a consumer of goods. Any person who obtains the goods for resale or for the
commercial purpose is not a consumer. Person who is buying for self-
employment is a consumer of goods – when goods are bought for commercial
purpose and such purchase satisfies the following criteria:

i. The goods are used by buyer himself,

ii. The goods are used exclusively for the purpose of earning his livelihood,
and
iii. The goods are used for the means of self-employment.
Then such use would be termed as use for commercial purpose under the
Act, and the user is recognized as a Consumer of goods. The word Service has
been defined by Section 2(1) (o) of the Consumer Protection Act, 1986 as:
Service means services of any description which is made available to
potential user and includes the provisions of facilities in connection with
banking, financing, insurance, transport, supply of electrical, etc., but does not
include the rendering of any service free of charge or under a contract of
personal service.
A person is a consumer of services if he satisfies the following criteria:
i. Person must avail or use any service for a price;
ii. Consideration must be paid or payable, payment need not necessarily be
immediate and can be paid in installments; and
iii. Beneficiary of services is also a consumer of services.19

18. Thakur Shweta and Jaswal Vikram singh, Medical Negligence in India, (2013) 74-75
19. Id., at 75-76.
 93

3.3 NEED FOR PROTECTION OF CONSUMER

The very phrase implies an adversarial relationship between the
producer and the consumer- as if the former is a voracious predator and the
latter, a feeble, helpless victim. It does not at all convey the symbiotic
relationship that ought to exist between the two.
The need for consumer protection stems from the unequal bargaining
power of the two sides-while the procedure is typically a large organization,
fully aware and informed, the consumer is equally typically an individual, with
little or no awareness of his rights. Be that as it may, there is a need to correct
this sub-conscious positioning- may be by re-christening it as consumer care.
Consumer care is a recent concept in India. After, all, it is only recently that we
started the journey from a controlled to a liberalized economy. Consumer care is
all about choices and the need to keep the consumer happy- both of which
absent in the pre-liberalized economy.20
3.4 PRINCIPLES OF CONSUMER PROTECTION
The following are the famous principles upon which the consumer
protection bases;
3.4.1 CAVEAT EMPTOR
The mercantile maxim Caveat Emptor21 prevails in the Indian market
environment and the seller does not hold him responsible for the quality of what
he seller does not hold him responsible for the quality of what he sells. Thus it
is assumed that the consumer was responsible for protecting himself and would
do so by applying his intelligence and experience in negotiating the terms of
any purchase.22 This, more or less, is the plight of the illiterate as well as the
educated consumer. That principle may have been appropriate for transactions
conducted in village markets.
3.4.2 CAVEAT VENDITOR
In early times, the consumer may have been able to protect himself
since the products were less sophisticated and could be inspected before

20. V. Ramakrishna, To Bring that Smile- Consumer care as a competitive tool, IRDA
Journal, December (2005) Vol. IV, No.1, P. 23 Visit at
http://www.irdaindia.org.com.in.
21. Let the buyer beware.
22. Peter, Smith and Dennis, Swann, Protecting the Consumer- An Economic & Legal
Analysis, (1978) 8.
 94

purchase. But now the conditions have changed. Now consumer protection is
based on the principle of Caveat-Venditor23 rule. Thus, whatever is sold by a
seller must be standard goods and according to the terms and conditions of the
sale. Where the goods sold by him do not confirm with the quality etc. of the
goods he will be within the jurisdiction of the Consumer Protection Act, 1986.
It also means that goods sold by him must be free from a fault,
imperfection or shortcoming in the quality, quantity potency, and purity or
standards;
i. Which is required to be maintained by or under any law for the time
being in force, or
ii. Under any contract, express or implied, or
iii. As is claimed by the trade in any manner in relation to any goods.
Even though it must always be kept in mind that consumer does not be
blind buyer. So, also service providers must be careful as to any fault,
imperfection, shortcoming or inadequacy in the quality nature and manner of
performance in relation to any service. All the service providers are within the
purview of the Consumer Protection Act whether Government/Public/Private.
Now many modern goods are technological mysteries. The consumer
had known little of nothing about these highly sophisticated goods. In real life,
products are complex and of great variety and consumers and retailers have
imperfect knowledge. The principle of Caveat Emptor, thus, has ceased to be
appropriate as a general rule. The consumers need protection by law when
goods fail to live up to their promises or indeed cause injury.24
There are multiple causes, which have been crippling the interest of the
consumer in the market economy. Several factors have contributed to the plight
of the consumer in our country. Widespread illiteracy, ignorance of consumer’s
legitimate rights, poverty and lack of organized efforts to check the market evils
are among the major causes which make people vulnerable to exploitation by
manufacturers as well as tradesmen and middlemen. There is also another
important factor that must be taken serious note of. And that is the persistent
tendency of the average Indian consumer to resign himself passively to his lot

23. Let the seller beware about the quality or fitness of the goods, sold.
24. Supra note 22.
 95

and thus unknowingly allow himself to be exploited. In this respect the illiterate
rural consumer and the literate and educated urban consumers are equally
guilty. Most of the rural poor live below of the poverty line and therefore are
content to keep their body and soul together somehow. The mere struggle for
survival uses up all their energies. They have neither the time nor the inclination
to think of their rights. Even the literate and educated consumer, who may not
be economically much better off than his rural counterpart, feels helpless before
the might of the exploiter and therefore acquiesces in his condition, even when
he knew that he is cheated with impunity, experience has taught him that
without political support and pull and money power nothing including good
things can be done in the country, as thing stand now.
At present the mechanism to protect the consumer’s interest is not
foolproof. The official concerned with consumer protection have not been as
they should be effective as in checking the exploiters either because they are
susceptible to gratification or the businessmen is much too powerful to oppose.
Perhaps both are correct.25
With globalization and development in international and development in
the international trade and consumer, there has been substantial increase of
business of trade and which resulted in a variety of consumer goods and
services to cater to the needs of the consumers. In recent years, there has been a
greater public concern over the consumer protection issues all over the world.
Taking into account the interest and needs of consumers in all countries,
particularly those in developing countries, the consumer protection measures
should essentially be concerned with;
i. the protection from hazards to public health and safety;
ii. the promotion and protection of economic interests;
iii. access to adequate information;
iv. control on misleading advertisements and deceptive representation;
v. consumer education; and
vi. effective consumer redress.26

25. Himachalam, D., Consumer Protection in India, (2006) 4.

26. United Nations, General Assembly- Consumer Protection Resolution, No. 39/248,
dated 9.4.85, Para 3. India is a signatory to this Resolution.
 96

In Morgan Stanley Mutual Fund v. Kartick Das,27 it was held by the

Hon’ble Supreme Court that the consumer deserve to get what he pays for in
real quantity and true quality. In every society, consumer remains the center of
gravity of all business and individual activity. He needs protection from the
manufacturer, producer, supplier, wholesaler and retailer.
3.5 CONSUMER EXPLOITATION
With the advancement of industry, science and technology, countless
articles of various kinds are introduced into market. Often some articles made
by different firms are presented under different brand names and in attractive
disguises and exceptional quality is claimed for every one of them.
All possible media of publicity, advertisements and propaganda through
the newspaper, the radio, the television etc. are employed to influence and
persuade the consumer. Often the consumer who is confused is at a loss to know
for certain the quality of the products he is exposed to and induced to buy. The
business community including middlemen, itself has been guilty of resorting to
many unhealthy and unethical trade practices such as the hoarding of essential
commodities and black marketing in them, charging exorbitant prices,
adulteration of goods and supply of substandard goods, use of false weights and
measures, deceptive advisements and so on. The only motive guiding their
activities seems to be profit making. As an inevitable consequence of these facts
the average consumer is rendered a helpless victim of exploitation at every
stage.28 The only way to counter and check such exploitation is to educate the
consumer and develop in him a clear awareness of exploiting situation and of
the necessity of devising safeguards to protect his genuine interest. Naturally
there has emerged a social movement called consumerism, which is inevitable
result of the exploited consumers becoming aware of the need for an organized
and concreted movement to protect themselves. In fact the situation as it
prevails requires a powerful and effective consumer movement whose activities
of which educated the consumer is the most important are carried out with a
wide network through the country and with a missionary zeal. In India,
consumer justice is a part of social and economic justice as enunciate in the

27. (1994) 4 SCC 225; MANU/SC/0553/1994.

28. Supra note 25 at p.6.
 97

constitution. Following the constitutional mandate a number of legislations29

have been enacted in the field of consumer protection relating to
standardization, grading, packaging and branding, prevention of food
adulteration, short weights and measures, hoarding, profiteering etc. but all
these are scattered pieces of legislations. The litigations under these legislations
are disportionately costly and troublesome to small consumers. The producers
are complex, cumbersome and time consuming and the remedies available are
limited in scope. The impact of these legislations in protecting the consumer has
been relatively small.30
3.6 CONCEPT OF CONSUMERISM
Consumerism is a social movement seeking to augment the rights and
powers of buyers in relation to sellers. The movement has its origin in consumer
discontent with products and services and the organization which offer them.31
As a matter of fact, consumerism is the name given to the consumer protection
movement. Social commentators have different views of the meaning and scope
of the consumer movement. In fact, consumerism refers to the activities of
several individuals and organized groups for asserting their rights as consumers.
In the context, a consumer is an individual who consumes goods, whether
manufactured by business units or created by nature such as air, water etc. and
service offered by the government business and even non-business
organizations like hospitals, religions, educational and other voluntary
organizations.32 Various definitions of consumerism have appeared from time to
time. Some have described consumerism as an organized activity to safeguard

29. e.g. Drugs (Control) Act, 1950; Drugs and Magic Remedies (objectionable
Advertisements) Act, 1954; Prevention of Food Adulteration Act, 1954; Essential
Commodities Act, 1955; Prevention of Black Marketing and Maintenance of Supplies
of Essential Services Maintenance Act, 1968; Trade and Merchandise Marks Act,
1958; Bureau of Indian Standards Act, 1986; The Monopolies and Restrictive Trade
Practice Act, 1969; Some Pre- independent Legislations are: Indian Contract Act,
1872; Sale of goods Act, 1930; Agricultural Procedure (Grading and Marking) Act,
1937; Drugs and Cosmetics Act, 1940.
30 . Agarwal, V.K., Consumer Protection (Law and Practice), (2003) 10.
31. Mehra, Mona, Consumerism in Service Industry, Indian Journal of Marketing, Vol.
VII, May (1977) 11.
32. Bhatt, R. Gopal, Consumerism Concept and its needs in our Era, Indian Journal of
Marketing, June- August (1985) 3.
 98

the interest of consumers. Such as, Richard H. Buskirk and James T. Rathe have
defined;33
Consumerism is as organized efforts of consumers seeking redress,
restitution and remedy for dissatisfaction they have accumulated in the
acquisition of their standard of living.
Further according to Philip Kotler;34
Consumerism is not limited to organized efforts only but it is a social
movement seeking to augment the rights and powers of buyers in relation to
seller.
3.7 WORLD CONSUMER MOVEMENT
In some countries the movement has taken deep roots and in others it is
highly militant.35 The nations where the consumer movement has shown much
strength are United States of America, Britain, Germany, Newzaland, France
and Japan. Moreover there have been efforts to spread the movement in a
number of other countries.36 The structure and nature of the movement and the
degree of consumer awareness among people vary widely from country to
country.
3.8 MEDICAL SERVICES UNDER CONSUMER PROTECTION
ACT, 1986
The definition of service given under Section 2(1) (o) of the Consumer
Protection Act, 1986 can be split into three parts-the main part, the inclusionary
part and the exclusionary part.
The main part is explanatory in nature and defines services to mean
services of any description which is made available to potential users. The
inclusionary part expressly includes the provisions of facilities in connection
with banking, financing, insurance, transport, processing, etc. The exclusionary
part excludes two types of services, i.e. any service rendered free of charge and
services rendered under a contract of personal services.37

33. Richard H. Buskirk and James T. Rathe, Consumerism- An Interpretation, Journal of

Marketing, October (1970) 61.
34. Philip Kotler, What Consumerism means for Marketers, Harvard Business Review,
May-June, (1972) 48& 49.
35. Bhagwati, P.N., Consumer Protection in India, mimeograph, third conference on
consumer protection in India, Surat, (1976) 2.
36. Kotler, Philip, Markrting Management, (1970) 483.
37. Barowali, J.N., Commentary on the Consumer Protection Act, (2008) 482.
 99

In India, health becomes a problem. The state could not provide medical
facilities for all the people. Besides the Government Hospitals, the private
sector has also established hospitals, and some of the rich people established
corporate hospitals. To get the treatment in the private hospitals has become
more expensive and luxury. When the corporate bodies entered into the medical
profession, the age-old principle of humanitarianism, service motto were
disappeared in the service field, it has become a burning problem for poor
middle class people.38
The Consumer Protection Act, 1986 defines service and affords the
protection to the aggrieved consumers by the deficient services. It recognized
that medical services are also services within the purview of this Act. The
consumer suffered by the defective medical services.39
In C. Siva Kumar v. Dr. John Arthur and another,40 the complainant
aged 23 years, who had urine problem and approached the 1st opposite party, a
doctor, for treatment. The complainant had blockage of urine. The doctor,
assisted by his compounder (the second opposite party) in all alleged attempt to
perform the operation totally cut off the penis. The doctor could not explain any
justification for cutting off the organ. There was profuse bleeding around the
penis region. He could not pass the urine, become permanently impotent and
could not have issues. It was held that though no amount of compensate the
complainant, the 1st opposite party was directed to pay the amount of Rs. 8
lakhs as compensation to the complainant.
3.8.1 MEDICAL SERVICE

The medical services include the service rendered by the hospitals both
government and private, nursing homes, Health Centers, clinics, medical
practitioners, chemists, Diagnostic centers, paramedical staff, nursing staff and
other allied staff.

These services have not been expressly and categorically included or

excluded within the definition of Services as defined under section 2(1)(o) of
Consumer Protection Act, 1986. Regarding the medical service, the inclusive

38. Dr. Myneni, S.R., Consumer Protection Law, (2010) 238.

39. Ibid.
40. III (1998) CPJ 436 Tamil Nadu SCRDC.
 100

part of the definition of service is not applicable and only main part and
exclusionary part is applicable. The expression ‘which is made available to
potential user contained in Section 2(1) (o) is not indicative of the legislative
intent to cover only a service of an institutional type, which is really a
commercial enterprise, and open and available to all who seek to avail thereof.
From the use of the word potential user it cannot therefore, be inferred that the
services rendered by medical practitioners are not contemplated by the
Parliament to be covered within the expression services as contained in Section
2(1)(o).41 The Supreme Court in Indian Medical Association v. V.P.
Santha,42held that medical service is a service covered by the Act. In this
judgment on medical services the Supreme Court examined the liability of
medical professional and Hospitals including the Government and Charitable
hospitals. The Supreme Court held:

i. Service rendered to a patient by a Medical Practitioner by way of

consultation, diagnosis or treatment falls under Section 2(1) (o).
ii. Service rendered free of charge by a Medical Practitioner attached to
hospital/nursing home and all medical officers employed in a
hospital/nursing home where such services are rendered free of charge to
all patients is not a service under the Act.
iii. Service rendered in a non-government hospital/nursing home where no
charge is collected from all patients is covered by the Act.
iv. Service rendered at non-governmental hospital/nursing home where
charges are collected from some and not collected from some others, the
service rendered falls under Section 2(1) (o) of the Act irrespective of
the fact the service was rendered free of charge to some poor personal.
The patient obtaining free service is also a consumer under the Act.
v. Service rendered at government hospital/health center/dispensary where
no charge is levied on any patient is outside the purview of the Act.
vi. Service rendered at a government hospital/health center/dispensary
where services are rendered on payment of charge to some and rendered
free of charge to other persons, falls under section 2(1) (o) of the Act

41. Supra note 18 at 76.

42. AIR 1996 SC 550.
 101

irrespective of the Act that the service is rendered free of charge to some
poor persons. The patient obtaining free service in such case also is a
consumer under the Act.
vii. Whereas a part of consideration of service the employer bears the
expenses of medical treatment of an employee and his family members,
the service to such an employee and his defendants by a Medical
practitioner or a hospital/nursing home would not be free of charge and
would constitute service under the Act.
viii. In most government hospitals there are separate paying wards where
affluent patients seek admission and the general ward where poor
patients are treated free of charge. Both the type of patients is entitled to
protection under the Act.

Thus the services rendered to a patient by a medical practitioner (except

where the doctor render services free of charge or under a contract of personal
service) by way of consultation, diagnosis and treatment would fall within the
ambit of service as defined in section 2(1)(o) of the Act.43

In Manager, Martha Medical Centre v. E.V. Thomas,44 the patient not

with an accident and seriously injured his knee. The respondent’s hospital gave
first aid, sutured the wound and bandaged to avoid infection. Subsequently the
patient developed disability when the doctors informed him that since his nerves
had been cut and there was no facility at the hospital, therefore he should go to a
better medical college. Admittedly this information was given to the patient
after 10 days, who still continued treatment and went to the advanced hospital
few days thereafter. Although the doctor, who continued to treat the patient
despite knowing of the nerve injury, was held negligent, yet the patient was also
held to be contributing to the negligence b not immediately shifting to an
advanced institution.

3.8.2 CONTRACT OF SERVICE

There was some misunderstanding about the nature of medical services.

The question was about the nature of doctor-patient relationship, whether

43. Supra note 18 at 78.

44. 1999 (1) CPR 466 (Ker. SCDRC).
 102

rendering medical service is excluded by exclusionary part of the definition of

service as defined in section 2 (1) (o) of the Act. A patient approaching a doctor
expects medical service treatment with all the knowledge and skill that the
doctor possesses to bring relief to his medical problem. The legal relationship
takes the form of a contract retaining the essential elements of tort. A doctor
owes certain duties to his patient and a breach of any of these duties give a
cause of action for negligence against the doctor. The doctor has a duty to
obtain prior informed consent from the patient before carrying out diagnostic
tests and therapeutic management. The relationship between physician and his
patient does not cover by provision of the law of employment contract because
it is a relationship which around the completion of once-off piece of work and is
not such a continuous relationship and the duty of care, arising from occupier’s
liability. Patient as the employer is generally not liable for the vicarious acts of
independent contractors. In Y. Meenakshi v. Dr. H. Nandeesh,45 the allegation of
negligence were that the complainant had been admitted to the nursing home
where she had caesarian delivery and suffered post-operation complications.
The result was that one of her kidneys got enlarged and left ureter was litigated.
She faced the risk of getting the defective kidney removed for replacement. It
was held that the complainant requisitioned the service of doctor under a
contract of personal service. She will not be the hirer of service for
consideration, as service rendered under contract of personal service is excluded
from the definition of the term service in section 2 (1) (o) of the Act.46

So it is not a contract for service but it is a contract of service. A

contract may be express or implied. An express contract is one, whose terms are
stated in words. An implied contract is one, the existence and terms of which
are manifested by conduct. A unilateral contract is one in which there is a
promise to pay other consideration in return for actual performance. A bilateral
contract is one in which a promise is exchanged for a promise. In most cases
contracts can be either written or oral but oral contracts are more difficult to
prove and in most jurisdictions the time to sue on the contract is shorter. In
common law, to be legally binding as a contract, a promise must be exchanged

45. II (1991) CPJ 533.

46. The Consumer Protection Act 1986, section. 2 (1) (o).
 103

for adequate consideration, while exchanging of promises is not an element of

contract according of contract law. Adequate consideration is as a benefit or
detriment which a party receives which reasonably and fairly induces them to
make the promise contract in common law but contract law does not consider
the adequacy of consideration an essential to a contract. It is covered by the
contractual privacy area.

Contracts are agreements that are legally enforceable. A contract may

involve a duty to do or refrain from doing something and the failure to perform
such duty is called a breach of contract. The law provides remedies it a promise
is breached aiming to restore the person wronged to the position they would
occupy if the contract had not been breached rather than punish the breaching
party. Generally Employer – employee relationship is governed by labor law.
This applies to every enterprise or establishment of industry, mining,
commerce, crafts, agriculture, non-religious, whether they are of professional
education or charitable characteristic as well as the liberal profession,
associations or groups of any nature whatsoever. This law governs relations
between employers and employee resulting from employment contracts.

Employee within the meaning of law is a person who has signed an

employment contract in return for remuneration under the director and
management of another person, whether that person is a natural person or legal
entity, public or private. To clearly determine the characteristics of an
employee, one shall not take into account the jurisdictional status of the
employer or that of the Employee, as well as the amount of remuneration.

In respect these confusions the Court held that:

There is a well-recognized distinction between a contract of service and

a contract for services.47 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 exercise professional or technical skill and uses his own

47. Dharangadhara Chemical Wroks Ltd. v. State of Saurashtra, 1957 AIR 264 1957 SCR
152 at p. 157.
 104

knowledge and discretion.48 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.49 We entertain no
doubt that Parliamentary draftsman was aware of this well accepted distinction
between contract of service and contract for service and has deliberately chosen
the expression contract of service instead of the expression contract for
services, in the exclusionary part of the definition of service in section 2 (1) (o).
The reason is that an employee in pursuance of a contract of employment. By
affixing the adjective personal to word service the nature of the contracts which
are excluded is not altered. The said adjective only emphasizes that what is
sought to be excluded is personal service only. The expression contract of
personal service in the exclusionary part of section 2 (1) (o) must, therefore, be
construed as excluding the services rendered by an employee to his employee
under the contract of personal service from the ambit of the expression service.

It is no doubt 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 expression contract of personal service contained in section 2 (1) (o)
of the Act has to be confined to employment of domestic servants only. We do
not find any merit in this submission. The expression personal service has a
well-known legal connotation and has been construed in the context of the right
to seek enforcement of such a contract under the Specific Relief Act. For that

48. Halsbury’s Law of England, 4th Edn., Vol. 16, Para 501.
49. Simmons v. Health Laundary Co. (1910) 1 K.B. 543.
 105

purpose a contract of personal service has been held to cover a civil servant50,
the managing agents of a company51 and a professor in the University.52 There
can be a contract of personal service if there is relationship of master and
servant between a doctor and the person availing his services and in that event
the services rendered by the doctor to his employer would be excluded from the
purview of the expression service under section 2 (1) (o) of the Act by virtue of
the exclusionary clause in the said definition.53

3.8.3 DEFICIENCY IN SERVICE

Deficiency means inadequacy to the quality to the quality or state of

being deficient, an amount that is lacking or inadequate, a shortage of
substances necessary to health. For example, the disease may be caused by
nutritional deficiencies. There are several deficiencies in his plan. The accident
was caused by deficiencies in the engine. In consumer law terminology
deficiency means any fault imperfection, short coming 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. Employing an unqualified nurse maybe considered as deficiency in
service. In a case the nurse had not only misread the doctor’s prescription but
had administered the wrong medicine without even a test dose and without the
supervision of a doctor. Worse, she had given a dosage that was three and a half
times the dosage required for a child of two years. The commission said that:

We feel it is high time that hospital authorities realized that the practice
of employing non-medical practitioners, such as those specializing in the unani
system, who do not possess the required skill and competence to give allopathic
treatment, and allowing them to treat patients is gross negligence.54

The health service has been influenced over the last few years by the
need for quality care as part of the clinical governance structure. At the same

50. The High Commissioner of India v. I.M. Lall, (1948) L.R. 75 I.A. 225.
51. Ram Kissendass Dhanuka v. Satya Charan Law, (1949) L.R. 77 I.A. 128.
52. S.B. Dutt v. University of Delhi, 1958 AIR 1050, 1959 SCR 1236.
53. Indian Medical aassociation v. V.P. Santha, AIR 1995 SC 530.
54. Spring Meadows Hospital v. Harjot Singh Ahluwalia, AIR 1998 SC 1801.
 106

time, public confidence in the quality of care delivered by healthcare

practitioners has been diminished by a series of events. A doctor, qualified in
one form of medicine, cannot practice another, and anyone who does that would
be held guilty of negligence per se, and there was no need for any further proof
of negligence. The Supreme Court in fact had gone so far as to describe such
person as quack and pretenders. In a case, a doctor, qualified in the system of
homoeopathy, had administered allopathic medicines to a patient, eventually
resulting in his death. A hospital employed a doctor and despite knowing that he
did not possess the necessary skill and competence to give some special
treatment, put him in charge of treating such special treatment is liable for the
injuries to the patients, hospitals that employ unqualified persons they would be
held accountable for their actions. The law may be an effective scrutinizer and
regulator, but that it also has its limitations in determining what is quality care
and good practice because of the complex multifaceted nature of much medical
decision making. Healthcare practitioners owe a duty of care to their patients
and, if they break that duty and harm results, then liability may accrue in the tort
of negligence Indian law does not only impose obligations in negligence upon
the individual medicinal but, in addition, the organization may itself be held to
be liable in the tort of negligence through direct liability for failure to provide a
safe system.55 When a patient is admitted to a hospital, it is done with the belief
that the treatment given by doctors qualified under the Indian Medical Council
Act. It is not within the knowledge of the relatives that the patient is being
treated by unani specialist.56 Deficiency in medical services gives the patient as
a consumer the right to claim compensation.57 Section 2 (f) defines deficiency as
follows;

Deficiency means any fault imperfection short coming 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.

55. Ibid.
56. Treasury Office and Member Security Pensioner Medical Fund v. G.K. Joshi, 1 (1996)
CPJ 22 Rajasthan SCDRC).
57. Poonam Verma v. Ashwin Patel (1996) 4 SCC 332.
 107

The legal standard of care in India which healthcare practitioners owe to

their patients has been rooted in professional practice, the well-known Bolam
test, which as stated by Judge MC Nair, provides that a doctor is not guilty of
negligence if he has acted in accordance with a practice accepted as proper by
a responsible body of medical men.58 This approach was followed over several
years in other areas of healthcare litigation such as consent to treatment.59 While
in a few cases judicial adherence to the party time wavered slightly and the
English courts confirmed their ability to scrutinize the standard of professional
practice.60 Such cases were the aberration, not the rule admittedly; the
professional practice standard itself is not static so that, for example, over the
last decade in the area of consent to treatment there has been a gradual trend
towards broader disclosure of information to patients highlighted through
professional practice guidelines. However, it is still a professionally based
standard. Nonetheless today there is greater judicial willingness to scrutinize the
opinion expressed by the body of professional practice. In particular where there
are questions of assessment of the relative risks and benefits of adopting a
particular medical practice, a reasonable view necessarily presupposes that the
relative’s risks and benefits have been weighed by the experts in forming their
opinions. But if, in a rare case, it can be demonstrated that the professional
opinion is not capable of withstanding logical analysis, the judge is entitled to
hold that the body of opinion is not reasonable or responsible. The judge
however emphasizes that in my view it will be very seldom right for a judge to
reach the conclusion that views genuinely held by a competent medical expert
are unreasonable.61

Overturning the responsible body of professional opinion is, in practice,

likely to be quite difficult. The issue of disclosure of risk has latterly applied to
diagnosis and treatment. If there is a significant risk which would affect the
judgment of a reasonable patient, then in the normal course it is the
responsibility of a doctor to inform the patient of that significant risk if the

58. Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582.

59. Mayanard v. West Midlanda Regional Heath Authority,(1985) 1 All ER 635 (HL).
60. Smith v. Trunbridge Wells Health Authority (1994) 5 Med LR 334.
61. Bolotho administratrix of the estate of Bolitho v. City and Hackney Health Authority
(1997) 4 AllER 771.
 108

information is needed so that the patient can determine for him or herself as to
what course that she should adopt.62 Here is indicative of a willingness to
scrutinize standards of professional opinion. No reasonable doctor would fail to
disclose a risk regarded as significant by a reasonable patient.

A doctor possesses the requisite skill in the medical profession which he

is practicing and undertaking the performance of the task entrusted to him. He
would be exercising his skill with reasonable competence as a supplier. If he
was not possessed of the requisite skill which he professed to have possessed,
then he will be under persecution of criminal law and when he did not exercise,
with reasonable competence in the given case, the skill which he did possess, he
may be held liable for negligence. Every doctor has a duty to act with a
reasonable degree of care and skill.63 Every person who enters into a learned
profession undertakes to bring to the exercise of it a reasonable degree of care
and skill.64 Seller or service suppliers such as professionals should provide the
goods or services in a reasonable and proper condition. Those goods and
services should also be safe for consumption. Such persons have created a legal
relationship with the seller or the service supplier after entering into some legal
relationship with them.

The negligence of medical professional comes within the expression of

deficiency in service. In view of the law on the subject as the doctors have
performed their duties to the best of their liability and with due care and
caution, it cannot be held that there is deficiency in service. It meant that where
doctors did not performed their duties to the best of their ability and with due
care and caution hence service is equal to performance duties to the best of
ability and with due care and caution. There are cases which the deficiency in
service may be due to obvious faults which can be easily established such as
removal of the wrong limb or the performance of an operation on the wrong
patient or giving injection of a drug to which the patient is allergic without

62. Pearce and Pearce v. United Bristol NHS Trust (1999) PIQR P53 (CA).
63. State of Haryana v. Smt. Santra, AIR 2000 SC.
64. Lanphier v. Phipos, 173 Egn. Rep. 581, 581 (K.B. 1838).
 109

looking into the outpatient card containing the warning.65 In this respect court
held that:

It is submitted that when the incident occurred there was no standby

anesthetist on call in the SICCU. By the time Dr. Jain who was called from
outside the hospital, the patient’s brain was dead. This is once an obvious
illustration of the deficiency of service and negligence of the hospital and its
entire staff… it is in evidence that Dr. Vaid and Dr. Mangal Jain failed to
intubate lesser size of tubes despite repeated attempts and trying serially. This
cannot be termed as either negligence or deficiency in service. The patient was
on ventilator support system with all organs having failed and during the last
stages had shallow respiratory effort and was wholly uncooperative which made
the intubation difficult till the time the death occurred… in substance, for
establishing negligence or deficiency in service there must be sufficient
evidence that a doctor or a hospital has not taken reasonable care while treating
the patient. Reasonable care in discharge of duties by the hospital and doctors
varies from case to case and expertise expected on the subject, which a doctor
or a hospital has undertaken. Courts would be slow in attributing negligence on
the part of the doctor if he has performed his duties to the best of his ability with
due care and caution.66 In Jaslin Chrysostom (Dr.) v. S. Lourdus,67 refusal on
the part of the doctor to issue certificate and treatment particulars of the patient
does not amount to deficiency in service.

The current legal standard of care imposed upon doctors, hospitals

nurses and other medical professionals is one where the medical practitioner
exercising and professing to have the particular skill in issue. The relevant
standard and the level of skill is that practiced and accepted by a responsible
body of medical persons skilled in a particular area of medicine in question. It is
the medical profession that, in effect, determines the standard of care among
medical practitioners. The definition of reasonable standard of care, or duty of
care, however, presents complications in all its own right as well. The
subjective nature of reasonable standard of care is defined carefully during a tort

65. Chinkeow v. Government of Malaysia, (1967) 1 WLR 813 P.C.

66. Mrs. Shantaben Muljibhai Patel v. Breach Candy Hospital, I (2005) CPJ 10 NC.
67. 2002 (1) CPR 149.
 110

case involving medical malpractice through expert witness testimony. Judges

are assumed to have little or no working background of knowledge in regard to
medical practices in most cases, and plaintiffs, as well as defendants, will
produce expert witness testimony promulgate or refute claims entered into the
courts, as well as establish guidelines for the duty of care necessary in a given
medical malpractice claims cases. For example in a case the complainant
suffering from recurring plain in her abdomen was advised operation for the
diseased diagnosed as Cholesystitis. Operation by means of the method of
Laparoscopic Cholecystectomy was done and the patient was discharged after 2
days. The complainant patient was continuously complaining of swelling and
service pain on the spot of the operation. The doctor treated her for post-
operative inflammation for a period of two months. However, there was no
evidence that the inflammation was because of any deficiency and that doctor
did not try to control the inflammation. The patient’s case that a piece of gauze
had been left inside and that a large piece of gauze came out from within her
abdomen from the spot of operation, was not proved by producing any evidence
to show that this act had caused subsequent inflammation. The District Forum
although disbelieved the complainant’s version of gauze, it found some
negligence on the part of the doctor and awarded Rs. 50,000 as compensation
payable by the doctor. In appeal, the state commission set aside the order of the
district Forum holding that a case of medical negligence has to be proved by
proper medical expert evidence and cannot be based on mere statement of the
patient. The National Commission dismissed the complaint holding that there
was neither any deficiency nor negligence in this case.68 But in some cases the
court may decide that a generally accepted practice among medical practitioners
is a negligent one, however general in the profession. The legal standard for
medical negligence various from place to place, but generally requires an
evaluation of the physician’s conduct either against that of a hypothetical
reasonable physician or else against professional custom. The first element
necessary to expose medical negligence in tort claims is establishing that
defendants and plaintiffs entered into an agreement that required a healthcare
professional to offer a duty of care, which is also known as a reasonable

68. Shikha Nayak v. Dr. Manabesh Pramanick, 1 (2006) CPJ 95 NC.

 111

standard of care. For patients that have become victims of medical malpractice,
the act of allowing a medical professional to examine, treat, or operate on their
body leaves healthcare professionals liable for any actions or incidents that
would deviate from a reasonable standard of care or duty of care. Where the use
of a new device involves a significant departure from traditional modalities of
care, and a dad clinical result follows, questions may arise about whether the
legal standard for negligence has been violated. For judges and policymakers,
the implication is that traditional legal those rules may sometimes have
unintended consequences that reach beyond any discrete malpractice dispute or
occurrence of medical injury. An important example of this kind of problem
involves the relationship between medical malpractice and new technology
adoption. Negligence and malpractice doctrine generally make it clear that
standards of care are evolutionary rather than static and those providers have an
obligation to stay abreast of new techniques and developments.69 For instance
Child birth in spite of a sterilization operation can occur due to negligence of
the doctor in performance of the operation or due to certain natural causes such
as spontaneous re-canalization. The doctor can be held liable only in cases
where the failure of the operation is attributable to his negligence and not
otherwise several textbook on medical negligence have recognized the
percentage of failure of the sterilization operation due to natural causes to be
varying between 0.3% to 7% depending on the techniques or method chosen for
performance the surgery out of the several prevalent and acceptable ones in
medical science. The fallopian tubes which are cut and sealed may reunite and
the woman may conceive though the surgery was performed by a proficient
doctor successfully by adopting a technique recognized by medical science.
Thus, the pregnancy can be for reasons dehorns and negligence of the surgeon.
Legal ambiguity around what the standard of care in this kind of circumstance
implies that physicians may genuinely not know the degree of negligence
liability risk that is associated with adopting a new clinical technology. By
itself, that may present a problem for judges after the fact, in determining
appropriate rules and incentives for apportioning liability fairly. More

69. Carter L. Williams, Evidence-Based Medicine in the Law Beyond Clinical Practice
Guidelines: What Effect Will EBM Have on the Standard of Care? 61 WASH & LEE
L. REV. 479, (2004). 508-12.
 112

important, though, is the potential for far-reaching effects on physicians (and

other care providers) in their willingness to adopt new technologies given ill-
defined but perceived malpractice liability risks associated with doing so.70 In
Lakshmi Rajan v. Malar Hospital Ltd.,71 the complainant, a married lady aged
40 years noticed development of painful limp in her breast. She went for
treatment to the opposite party hospital. Her uterus was removed without any
justification. It was held liable to pay compensation to the complainant. The
damages and causation prongs in medical negligence are also frequently straight
forward e.g., where a surgical error clearly results in a patient’s injury or
disfigurement. The most important and complex legal requirement for
negligence is breach i.e., not only that a physician owed a duty of care to her
patients, but that by her actions she somehow violated that duty. Establishing
whether a breach has taken place requires a comparison between the physician’s
actions and a legal standard of care, which represents what physicians are
obligated by law to do in providing medical services to their patients.
Determining how the legal standard of care applies to a particular clinical
situation is sometimes ambiguous, and it usually involves tapping the expertise,
opinions and testimony of other physicians.72 A doctor, in essence, needs to be
inventive and has to take snap decisions especially in the course of performing
surgery when some unexpected problems crop up or complication set in. if the
medical profession, as a whole, is hemmed in by threat of action, criminal and
civil, the consequence will be loss to the patients. No doctor would take risk; a
justifiable risk in the circumstance will be loss to the patients. No doctor would
take a risk, a justifiable risk in the circumstances of a given case, and try to
save his patient from a complicated disease or in the face of an unexpected
problem that confronts him during the treatment or the surgery. It is in this
background that this court has cautioned that the setting in motion of the
criminal law against the medical profession should be done cautiously and on
the basis of reasonably sure grounds. In criminal prosecutions or claims in tort,
the burden always rests with the prosecution or the claimant. No doubt, in a

70. M. Gregg Bloche & David M. Studdert, A Quiet Revolution: Law as an Agent of
Health System Charge, 23 Health Affairs, (2004) 29, 39.
71. III (1998) CPJ 586 TN SCDRC.
72. Ben A. Rich, Medical Custom and Medical Ethics: Rethinking the Standard of Care, 14
CAMBRIDGE Q. HEALTHCARE ETHICS 27, (2005) 27-28.
 113

given case, a doctor may be obliged to explain his conduct depending on the
evidence adduced by prosecution or by the claimant. The position does not
change merely because of the caution advocated in Jacob Mathew in fixing
liability for negligence, on doctors.73

In Kannan V.R. Vithayathil House v. Sree Sudheendra Medical Mission

Hospital,74 in this case, the complainant was admitted in the hospital for acute
fever. He was subsequently shifted to ICCU on the second floor. The
complainant fell down from 3rd floor of the hospital and sustained injuries on
his head, legs and left eye. Complainant alleged that the incident had taken
place due to lack of proper care by hospital management. It was held that care
of hospital to patient will include diligent supervision and management of the
patient and not merely confinement to the actual medical treatment.

In Shri S.K. Alagiri v. Rohindra Lall,75 in this case the patent visited in
the hospital for eye checkup. The Doctor examined him and found cataract
changes in both the eye and the left eye more than the right eye. Cataract
surgery in the left eye of the complainant was performed without pre-operation
investigation by the doctor. He was discharge after one hour of the operation
with the advice to report the next day. He spent sleepless night due to a lot pain
in his operated eye. The complainant visited the hospital accordingly with pain,
redness and swelling in the eye and again some medicine was given. He could
not see anything when the bandage of his eye opened. Consider the fact and
circumstances and his present status of the left eye permanently blind, mental
agony, harassment of the complainant and his family members as well as aspect
of inflation, we find it just and proper to award a compensation i.e. Rs.
6,05,593.45 from the date of filing of complaint till the date of payment to the
entire compensation.

73. C.P. Sreekumar M.S (Ortho) v. S. Ramanujam, Civil Appeal No. 6168, 2008, decided
on 2009 SC.
74. 2002 CPR 186.
75. 2017 SCDRC Andaman & Nicobar Island, Port Blair.
 114

3.9 ADJUDICATION OF MEDICAL NEGLIGENE UNDER

CONSUMER PROTECTION ACT, 1986

First step in adjudication of cases of medical negligence under

Consumer Protection Act, 1986 is filling a complaint.

3.9.1 COMPLAINT

Complaint means any allegation in writing in respect of unfair trade

practice or restrictive trade practice adopted by any trader, the goods brought or
agreed to be brought are defective, the services hired or agreed to be hired
suffer from any deficiency or excess charging of price or sale of goods
hazardous to life.76

Before the Amendment Act of 1993, there was no provision for goods
agreed to be purchased or services agreed to be hired. But after Amendment Act
of 1993, the goods agreed to be purchased or services agreed to be hired were
also covered by the expression complaint. The scope of the complaint has
enlarged. Now it is not necessary that actual loss or damage has been suffered
by the purchaser of goods or hired of services. The agreement for the purchase
of goods or for hiring of services which are proved to be defective and deficient
is sufficient to bring within the definition of complaint. A complaint on behalf
of the public which consist of unidentifiable consumers cannot be filed under
the Consumer Protection Act, 1986. A complaint must comprise any or the
entire following allegation.77

i. An unfair trade practice or a restrictive trade practice has been adopted

by any trader or physician;
ii. The goods bought by the consumer or agreed to be bought by him
suffered from one or more defects;
iii. The services hired or availed of or agreed to be brought by him suffer
from deficiency in any respect;
iv. A trade has charged for the goods mentioned in the complaint a price in
excess of the price fixed by or under any law for the time being in force
or displayed on the goods or any package containing such goods.

76. The Consumer Protection Act, 1986, section 2(1) (c).

77. Ibid.
 115

3.9.2 COMPLAINANT

Complainant is one who makes a complaint. It also means one who

makes an allegation or an accusation, or a charge, in order to prosecute a
person. Complainant is one who enters a legal complaint against another.

Under Section 2(1) (b) of the Consumer Protection Act, 1986 complainant
means:

i. A consumer; or
ii. Any voluntary consumer association registered under the Companies
Act, 1956, or under any other law for the time being in force; or
iii. The central government or any state government; or
iv. One or more consumers, where there are numerous consumers having
the same interest; or
v. In case of death of a consumer, his legal heir or representatives.

A complaint in relation to any goods sold or delivered or any service

provided may be filed with an appropriate District Forum, or to appropriate
State Commission; or to appropriate National Commission.78 Thus, the District
forum, State Commission and the National Commission are the Consumer
Dispute Redressal authorities with respective pecuniary jurisdiction to entertain
the complaint.

3.9.3 AGAINST WHOM COMPLAINTS CAN BE FILED

Against seller or his agent, Principal or his dealer, manufacturer or his
distributors and master and his employee a complaint can be filed.
In case of agent, he is not personally liable for the contract entered into
by him on behalf of his principal. He is protected from any personal liability
under the Act, in the view of the protection available under section 230 of the
Indian Contract Act. In case of master and his employee, the master is liable for
the acts of the servant if they are acting within the course of his normal duties.
A consumer dispute can be filed within two years from the date on
which the cause of action arises. The point of time when cause of action arises
is an important factor in determining the time period available to file a
complaint. There is no set rule to decide such time it depends upon the facts and

78. The Consumer Protection Act, 1986, section 12(1).

 116

circumstances of each case. Frivolous and vexatious claims will be dismissed

and the complainant can be charged with costs not exceeding Rs. 1000.79
3.9.4 RELIFE AVAILABLE AGAINST COMPLAINTANT
The Consumer Protection Act, 1986 provide following relief to the
complainant:
i) To remove the defects
ii) To replace the goods
iii) To refund the price charged
iv) To pay amount of compensation for any loss or injury suffered by the
complainant due to negligence
v) To remove the deficiency in service
vi) To discontinue the unfair trade practice
vii) Not to offer or to withdraw hazardous goods for sale
viii) To provide for adequate costs to parties80
Forum (FORA) can only grant these reliefs and not beyond that.
3.9.5 ADJUDICATION AUTHORITIES DEALING WITH CASES OF
MEDICAL NEGLIGENCE UNDER CONSUMER PROTECTION
ACT, 1986
The Consumer Protection Act, 1986 provides for a three-tier approach in
medical negligence cases. The three levels of consumer forums created by the
Act are:81
i) District Consumer Disputes Redressal Forum (District Forum) in each at
the District level.
ii) State Consumer Disputes Redressal Commission (State Commission) at
the State level.
iii) National Consumer Disputes Redressal Commission (National
Commission) at the National level.
3.9.5.1 Constitution of Forums
3.9.5.1.1 District Forum
The Consumer Disputes Redressal Forum at the base level is the
Consumer Forum at the District level. Each District Forum shall consist of one
president and two other members (one of whom is to be a woman). President of

79. Thakur Shweta and Jaswal Vikram Singh, Medical Negligence in India, 2013.
80. The Consumer Protection Act, 1986, section 14,
81. Id., at section 9.
 117

a District Forum must be a person who is, or has been or is qualified to be a

District Judge.82 Qualifications of two other members;
i) Be not less than 35 years of age,
ii) Possess a bachelor’s degree from a recognized university, and
iii) Be a person’s ability, integrity and standing and have adequate
knowledge and experience of at least 10 years in dealing with problems
relating to economics, law, commerce, accountancy, industry, public
affairs or administration.83
Disqualifications for the Appointment as a member
A person shall be disqualified for appointment as a member, if he:84
i) has been convicted and sentenced to imprisonment for an offence which
in the opinion of the state government involves moral turpitude,
ii) is an undischarged insolvent,
iii) is an unsound mind and stand so declared by a competent court,
iv) has been removed or dismissed from the service of the government or a
body corporate owned or controlled by the government,
v) has, in the opinion of the state government such financial or other
interest as is likely to affect prejudicially the discharge of his function as
a member, and
vi) has such other disqualification as may be prescribed by the state
government.

Every appointment to the District Forum shall be made by the State

Government on the recommendation of a selection committee consists of the
president of the State Commission (chairman), Secretary (Law department) of
the State (Member) and Secretary (in-charge of the department dealing with
consumer affairs) in the State (member).85

Every member of the District forum shall hold office for a team of five
years or up to the age of sixty-five years, whichever is earlier and shall be

82. Id., at section 10(1) (a).

83. Id., at section 10(1) (b).
84. Id., at proviso to section 10(1) (b).
85. Id., at section 10(1A).
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eligible for reappointment for another term of five years or till the age of sixty-
five years whichever is earlier.86

A vacancy in the office of President or a member may occur after the

expiry of his term or by his death resignation or removal. Where any vacancy
assumes in the office of the President of the District Forum, the senior most (in
order of appointment) member of the District Forum shall discharge the
functions of the President until a person appointed to fill such vacancy assumes
the office of the President of the District Forum.87

When the President of the District Forum is unable to discharge the

functions due to absence, illness or any other cause, the senior most (in order of
appointment) member of the District Forum shall discharge the functions of
President until the day on which the President resumes the charge of his
functions.88 The salary or honorarium and other allowances payable to, and the
other terms and conditions of service of the members of the district Forum shall
be such as may be prescribed by the State Government. Different states have
made different rules in this regard.89

Shija Hospital & Research ... v. Khumanthem Phunindro Singh & Ors90,
as directed by the learned District Consumer Disputes Redressal Forum, Imphal
in its judgment and order dated 16.02.2018 in Complaint Case No. 25 of 2014,
the amount of compensation and the cost of litigation totaling Rs. 5,90,000
(Rupees five lakh ninety thousand) only shall be paid to the complainants
(respondents in the present appeal) by the Appellants within a period of one
month from the date of this judgment and order, failing which 12% interest per
annum will be charged on the awarded amount.

3.9.5.1.2 State Commission

The State Commission, after the District Forum is next in the hierarchy of
Consumer Redressal Forums under the Consumer Protection Act, 1986. A State
Commission consists of a President and two members one of whom is to be a

86. Id., at section 10(2).

87. The Consumer Protection Act, 1986, Rules framed by various State Government by
virtue of Sec. 30(2).
88. Barowalia, J.N., Commentry on the Consumer Protection Act, (2008), 565.
89. Id., at section 16(1) (a).
90. First Appeal No. A/1/2018 SCDRC, Imphal Manipur.
 119

woman. The President of State Commission shall be a person who is or has

been a judge of High Court.91 Qualification of members of the State
Commission is same as the qualification of members of District Forum and also
the disqualification of the State Commission is same as the disqualification of
the members of District Forum. Every appointment of the members of the State
Commission shall be made by the State Government on the recommendations of
a selection committee consisting of the following members, VIZ., President of
the State Commission (Chairman), Secretary of the Law Department of the
State (member) and Secretary Incharge of Department dealing with consumer
affairs in the state (member). Every member of the State Commission shall hold
office for five years or up to the age of sixty-seven years whichever is earlier
and he is not eligible for reappointment.92

Rules as to the vacancy arising in the office of the President or any

member are similar to those discussed in context of members of District Forum.
The salary or honorarium and other allowances payable to and the other terms
and conditions of service of, the members of the State Commission shall be
such as may be prescribed by the State Government.93

In Vinod Sanghi Alias V.K. Sanghi v. Neo Retina Eye Care Institute94 In
a case where negligence is evident, the principle of res-ipsa- loquitur operates
and the complainant does not have to prove anything as the thing (res) proves
itself. In such a case, it is for the respondent to prove that he has taken care and
done his duty to repel the charge of negligence. Medical practitioners do not
enjoy any immunity and they can be sued, if they have failed to exercise
reasonable skill and care. Negligence is the omission to do something, which a
reasonable man, guided upon those considerations, which ordinarily regulate the
conduct of human affairs, would do or doing something, which a prudent and
reasonable man would not do. Test for negligence is failure to exercise ordinary
care and caution expected from prudent man in the circumstances in a given
case. The definition involves the following constituents:-

91. Id., at section 16(1) (a).

92. Id., at section 16(3).
93. Supra note 1 at 83.
94. CC. No. 275 of 2014 decided on 2018 SCDRC, Telangana (Hyderabad).
 120

1. A legal duty to exercise due care

2. Breach of the duty and

3. Consequential damages.

The breach of duty may be occasioned either by not doing something,

which a reasonable man, in a given set of circumstances, would do or, by doing
some act, which a reasonable prudent man would not to do. n the result the
complaint is allowed in part holding and directing the opposite parties no.1 and
2 liable to pay Rs.5,00,000 to the complainant with costs of Rs.5000. The
complaint against the opposite party no.3 is dismissed without costs. Time for
compliance four weeks.

3.9.5.1.3 National Commission

National Commission is the highest in the three level hierarchies of the

consumer Forum. The National Commission consists of a President and four
other members (one of whom is to be a woman).95 Qualification of the President
of the National Commission is that he should be one who is or has been judge of
Supreme Court. The members of National Commission should be persons of
ability integrity and standing and having adequate knowledge or experience of,
or having capacity in dealing with the problems relating to economics, law,
commerce, accountancy, industry, public affairs, or administration.

The appointing authority of the President of the Commission is Central

Government on recommendation of the Selection Committee. Selection
Committee consists of:

i. A person who is a judge of Supreme Court to be nominated by the Chief

Justice of India as the Chairman;
ii. Secretary in the Department of Legal affairs in the government of India
as member; and
iii. Secretary of the department dealing with consumer affairs in the
Government of India as member.

95. Id., at section 20(1) (b).

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Prior to the appointment of the President and members of the National

Commission, they have to undergo an undertaking that he does not and will not
have any such financial or other interest as is likely to affect prejudicially his
function as such President and member. The President and every member of the
National Commission shall hold office for a term of five years or upto the age
of seventy years, whichever is earlier and shall not be eligible for re-
appointment.96

In M. Kochar v. Ispita Seal,97 in this recent case, the National Dispute

Redressal Commission (NCDRC) was confronted with the issue of failure in
IVF procedure and demand compensation from the doctor on account of
medical negligence. The National Commission in this case held that no cure/no
success is not negligence, thus fastening the liability upon the treating doctor is
unjustified.

In Indu Sharma v. Indraprashta Apollo Hospital,98 The corporate

hospitals and specialists, as might be expected, must perform at a higher level
than other hospitals/general practitioners. They, after all, represent themselves
as possessing highest standard facilities and care; also possess superior skills
and additional training. The hospital charges and the doctor’s fees normally
reflect this, held National Consumer Dispute Redressal Commission while
holding the attending gynecologist and Indraprashta Apollo Hospital guilty of
medical negligence and directing them to pay Rs 1 crore in compensation. This
judgment was pronounced in a complaint filed by a couple, whose baby
suffered mental disability due to negligence of the doctor at the time of delivery.
The woman, who conceived after several years of infertility treatments, was
admitted to Apollo hospital for delivery in June 1999. As a result of substandard
care during labour, the child suffered birth asphyxia resulting in cerebral palsy
due to negligence at the time of birth. As the baby developed complications two
months later, the parents took her to All India Institute Medical Science where
Electroencephalogram (EEG) and Computer Tomography scan (CT scan)
revealed that she was severally affected by atrophy of brain. The disability

96. Id., at section 20(3).

97 . First Appeal no. 368 of 2011, decided on December 12, 2017.
98 . 2015 SCC On Line NCDRC 11, decided on 22.04.2015
 122

board of All India Institute of Medical Science certified that the baby was
suffering from 95% disability. Alleging medical negligence the couple
approached National Consumer Dispute Redressal Commission in 2002. The
child, who underwent treatment for multiple health problems at several
hospitals, including All India Institute of Medical Science, died at the age of 12
years, on January 15, 2012. After perusing the relevant documents and medical
records of the mother and child, Commission found the attending gynecologist
and Indraprashta Apollo Hospital guilty of medical negligence and noted,
substandard care to the patient during labour resulted poor outcome despite
using modern technology of cardiotocography (CTG). Inability to interpret the
cardiotocography (CTG) trace, i.e., poor pattern recognition, failure to correlate
to the pathophysiology that causes the cardiotocography (CTG) changes, not
taking into consideration the clinical situation that may suggest foetal distress
and delay in taking appropriate action due to poor communication and team
work were reasons for the poor outcome. While fixing total compensation of Rs
1 crore, the Commission clarified that out of the total
compensation Indraprastha Apollo Hospital, would pay Rs 80 lakh and the
gynecologist would pay Rs 20 lakh to the complainant. During the course of
proceedings, the Commission also found that the hospital had filed tampered
medical records of the mother’s treatment; hence, punitive cost of Rs 10 lakh
was also imposed on Indraprastha Apollo Hospitals, which was directed to be
deposited in the Consumer Legal Aid Account, National Consumer Dispute
Redressal Commission.

3.9.5.2 Jurisdiction of Three-tier Consumer Forum

Jurisdiction of the court means the right of a court to decide a subject

matter. The jurisdiction has been classified into:

i. Pecuniary Jurisdiction.
ii. Territorial Jurisdiction.
iii. Appellate Jurisdiction.
iv. Revisional Jurisdiction.99

99. Supra note 1 at 84.

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3.9.5.2.1 Pecuniary Jurisdiction

Pecuniary Jurisdiction is the jurisdiction pertaining to the financial value

of subject matter. The pecuniary jurisdiction of District Forum to entertain
complaints where the value of the goods or services and the compensation, if
any, claimed does not exceeds rupees twenty lakh.100 The Pecuniary jurisdiction
of the State Commission to entertain complaints is where the value of the goods
or services and compensation if any, claimed exceeds twenty lakh rupees.
However, where the value of claim exceeds rupees one crore the matter is
beyond its jurisdiction, i.e. Pecuniary jurisdiction of the State Commission
exceeds rupees twenty lakhs but does not exceed rupees one crore. 101 The
Pecuniary Jurisdiction of the National Commission to entertain Complaints
where the value of the goods or services and compensation, if any, claimed
exceeds rupees one crore.102

3.9.5.2.2 Territorial Jurisdiction

A complaint shall be instituted in a District Forum within the local limits

of whose jurisdiction:

i. The opposite party or each of the opposite parties where there are more
than one, at the time of the institution of the complaint, actually and
voluntarily resides or carries on business or has a branch office or
personally works for gain; or
ii. Any of the opposite parties, where there are more than one, at the time
of institution of complaint, actually and voluntarily resides, or carries on
business or has a branch office or personally works for gain, provided
that in such case either the permission of the District Forum is given, or
the opposite parties who do not reside, or carry on business or have a
branch office or personally work for gain as the case may be, acquiesce
in such institution; or
iii. The cause of action wholly or partly arises.103

100. Id., at section 11 (1).

101. Id., at section 17(1) (a).
102. Id., at section 21(a) (i).
103. Id., at section 11(2).
 124

Territorial jurisdiction of the District forum is governed by the general

principal of the law which is contained in Section 20 of Code of Civil
Procedure, 1908. Similarly, the territorial jurisdiction of the State Commission
is also governed by the general principles of law which are contained in Section
20 of Code of Civil Procedure, 1908.

A complaint shall be instituted in the State Commission within the local

limits of whose jurisdiction the opposite party at the time of institution of the
complaint voluntarily resides or carries on business or has a branch office or
personally works for gain; or any of the opposite parties at the time of
institution of the complaint carries on business or has a branch office or
personally works for gain; and where the cause of action wholly or partly
arises.104 The pecuniary jurisdiction of the National Commission to entertain
complaints where the value of the goods or services and compensation, if any,
claimed exceeds rupees one crore and the territorial jurisdiction of National
Commission extends throughout the territory of India except State of Jammu &
Kashmir.

3.9.5.2.3 Appellate Jurisdiction

Appellate jurisdiction of the District Forum-District Forum is the lowest

rung of the ladder of the consumer courts. Hence, this is not an appellate court,
i.e. no appeal lies in this court. Consumer Protection Act empowers the State
Commission to adjudication upon the appeals made against the orders of
District Forum. Any person aggrieved by an order made by the District Forum
may prefer an appeal against such order within thirty days from the date of
passing of such order.105 The National Commission has the jurisdiction to
entertain appeals against the order of any State Commission.106

The appeal may be made within 30 days from the date of the order of the
State Commission. There is, however, no second appeal provided under section
21 of the Act to the National Commission against the orders passed by the
District Forum.

104. Id., at section 17(2).

105. Id., at section 17(1) (a) (ii).
106. Id., at section 21(a ) (ii).
 125

3.9.5.2.4 Revisional Jurisdiction

In revisional jurisdiction, the state commission has jurisdiction to call

for the records and pass appropriate orders in any consumer disputes which is
pending before or has been decided by any District Forum within the State,
where the State Commission feels that:

i. The District Forum has exercised a jurisdiction which is not vested to it.
ii. The District Forum has filled to exercise a jurisdiction so vested,
iii. The District Forum illegally acted in exercise of its jurisdiction, and
iv. The District Forum has acted in exercise of its jurisdiction with material
irregularity.107

Therefore, the State Commission has the power of revision only in

above four cases. On exercising the revisional jurisdiction, the National
Commission can call for records and pass appropriate orders in any consumer
dispute which is pending before or has been decided by any State Commission,
if it is of the view that the State Commission:

i. Has exercised jurisdiction which it was not entitled to, or

ii. Has failed to exercise such jurisdiction which it was entitled to, or
iii. Has exercised its jurisdiction illegally or with material irregularity.108

The revisional jurisdiction is available to the National Commission only

in cases where there has been wrongful, illegal and improper exercise of
jurisdiction or failure to exercise jurisdiction on the part of the State
Commission.109

3.9.6 PARTICULARS AND MANNER OF FILING COMPLAINT

The Act or Rules do not prescribed any specific form for filing of
complaint.

A complaint may, however, be in following format:

Before the District forum/State/National Commission the complaint must

contain these particulars:

107. Id., at section 17(1) (b).

108. Id., at section 21(b).
109. Supra note 1 at 87.
 126

i. Name and full address of complainant.

ii. Name and full address of opposite party/ parties.
iii. Background of complaint.
iv. Defect/deficiency observed.
v. Efforts made by complainant to sort out the grievance (Particularly when
if a notice was sent or some letters were written, etc.).
vi. Approach to other judicial forum like civil court, etc. if any may be
mentioned.
vii. Proofs in support of complaint.
viii. Limitation period to be stated.
ix. Jurisdiction to be stated.
x. Relief claimed such as removal of defects replacements / compensation /
interest / punitive damages, etc.
xi. Place, date and signature of complaint.110

There is no specific requirement for verification of the complaint and/or

any affidavit in support of the complaint, as is normally done in case of civil
suits in the civil courts. Notice should be given to the opposite party that
complaint will be filed if remedial action is not taken within 2 weeks.
Complaint should be accompanied by the amount of prescribed fee. Proceedings
under the Consumer Protection Act, 1986 summary in nature and where
elaborate enquiry, oral or documentary evidence is needed, interrogatories are
issued; such cases should be decided by Civil Court.111

Complaint can be sent by post or personally filed. No fees are payable

for filing complaint. Normally four copies of complaint are required to be
submitted, out of which one is forwarded by the Consumer Forum to opposite
party.112 If there are more than one opposite parties, corresponding number
extra copies of complaints should be submitted complaint, can be filed and
signed by complainant, or his authorized agent.

110. Durga S.M. Commentary on MRTP Law, Competition Law and Consumer Protection
Law, (2006) 1187.
111. International Labour Organisation v. National Insurance co., 1993 (1) CPR 539.
112. Consumer Protection Rules, 1987, Rule 14.
 127

Fee payable while filing complaint with the District Forum, State
Commission or the National Commission has been prescribed by Rule 9A of the
Consumer Protection Rules, 1987. Fee for filing complaint involving claim of
Rs. 1 lakh is Rs. 100; Rs. 200 for complaint involving claims over Rs. 1 lakh
and upto 5 lakh; Rs. 500 for complaints involving over Rs. 5 lakhs and upto Rs.
20 lakh, which are filed before the District Forum.113 A fee of Rs. 2000 and Rs.
4000 has been prescribed for complaint involving claims above Rs. 20 lakh and
uptoRs. 50 lakh; and above Rs. 50 lakh and uptoRs. 1 crore, respectively before
the State Commission.114 For complaints filed with the National Commission,
which would be for claims above Rs. 1 crore, a fee of Rs. 5000 has been
fixed.115

On receipt of the complaint, the District Forum may, by order, allow the
complaint to be proceeded with or rejected. Before rejecting a complaint, an
opportunity of being heard has to be given to the complainant. Admissibility of
the complaint shall ordinarily be decided within twenty-one days from the date
on which the complaint was received.116

A complaint can be rejected on the basis of the following grounds:

i. Lack of jurisdiction,
ii. Non-payment of fees,
iii. Frivolous and vexatious complaint,
iv. Complaint is not a consumer and/or controversy is not a consumer
dispute,
v. Limitation, and
vi. Matter already lying with other judicial forum (like civil court, etc.).

These provisions also apply to State and National Commission.

3.9.7 PROCEDURE ON ADMISSION OF COMPLAINT

Procedure which us followed by the District forum has been elaborately

given under section 14, by the State Commission under section 18 and by the
National Commission under 22 of the Consumer Protection Act, 1986.

113. Id., at Rule 9A

114. Ibid.
115. Ibid.
116. The Consumer Protection Act, 1986, section 12(3).
 128

3.9.7.1 District Forum

Where a complaint relating to any goods has been admitted by the

District Forum, it shall refer a copy of the admitted complaint within twenty-
one days from the date of its admission to the opposite party, directing him to
give his version of the case within a period of thirty days or extended period not
exceeding fifteen days.117 Where the opposite party on receipt of a complaint
referred to him denies or disputes the allegations contained in the complaint, or
omits or fails to take any action to represent his case within the time given by
the District Forum, the District Forum shall proceed to settle the consumer
dispute in manner specified in Section 13(1) (c) to (g).118 When the complaint is
in respect of a defect in the goods which cannot be determined without proper
analysis or test of the goods sample of the defective goods will be taken, sealed
and authenticated by the District Forum. Then this complaint will be referred to
appropriate laboratory for analysis to test for giving its report within 45 days or
within such extended period as may be granted by the District Forum. 119 The
District Forum may also require the complainant to deposit the fees for testing
as may be prescribed before referring the sample to the laboratory.120 The
District Forum if consider necessary may direct the complainant to provide
more than one sample of the goods in clean containers with stoppers properly
fixed on them. On receiving the samples of such goods, the District Forum shall
seal it and fix labels on the containers carrying following information:

i. Name and address of the appropriate laboratory to whom sample will be

sent for the analysis and test,
ii. Name and address of the District forum,
iii. Case Number, and
iv. Seal of the District Forum121

The District Forum shall remit the credited fee to the laboratory in order
to enable it to carry out the analysis or test of the goods in question.122 The

117. Id., at section 13(1) (a).

118. Id., at section 13 (1) (b).
119. Id., at section 13(1) (c).
120. Id., at section 13(1) (d).
121. Supra note 114, Rule 5.
 129

District Forum shall forward a copy of the report prepared by the appropriate
laboratory along with such remarks as the District Forum may feel appropriate
to the opposite party.123 The opposite party or the complainant disputes the
correctness of the finding of the appropriate laboratory or disputes the
correctness of the methods of analysis or test then they shall submit in writing
his objection to the District forum.124

The District Forum shall give a reasonable opportunity to the

complainant as well as to the opposite party of being heard as to the correctness
of the report and also as to the objections made in relation to the report of the
appropriate laboratory.125

If the complaint relates to any services or if it related to goods in respect

of which the above procedure cannot be followed, then the District Forum shall
follow the procedure elaborated under Section 13(2). In such case the District
Forum on admitting the complaint shall refer a copy of such complaint to the
opposite party. The opposite party has to give his version of the case within a
period of thirty days or such extended period not exceeding fifteen days as may
be granted by the District Forum.126 Where the opposite party denies or disputes
the allegations, or omits or fails to take any action to represent his case within
the time the District Forum shall proceed to settle the consumer dispute.127 The
District Forum shall decide the consumer dispute on the basis of evidence
brought to its notice by the complainant and the opposite party, where the
opposite party denies or disputes the allegations contained in the complaint.128
The District Forum shall proceed to settle the dispute ex-parte on the basis of
evidence brought to its notice by the complainant where the opposite party
omits or fails to take action to represent his case within the time given by the
Forum.129 Every complaint shall be heard expediously and endeavour shall be
made to decide the complaint within a period of three months from the date of
receipt of notice by the opposite party where no analysis and testing of

122. The Consumer Protection Act, 1986, section 13(1) (e).

123. Ibid.
124. The Consumer Protection Act, 1986, section 13(1) (g).
125. Id., at section 13(1) (f).
126. Id., at section 13(1) (a).
127. Id., at section 13(1) (b).
128. Id., at section 13(1)(b) (i).
129. Id., at section 13(1)(b) (ii).
 130

commodities are required. In case analysis and testing of commodities is

required the complaint shall be decided within a time period of five months. No
adjournment shall ordinarily be granted by the District Forum unless sufficient
cause is shown and reasons for granting adjournment have been recorded in
writing by the Forum.130

3.9.7.2 State Commission

The State Commission shall follow the same procedure in deciding the
complaints as is to be followed by the District Forum.131

3.9.7.3 National Commission

The provisions of Section 12, 13 and 14 and rules made there under for
the complaints by the District Forum shall, with such modification as may be
considered necessary by the Commission, be applicable to the disposal of
disputes by the National Commission.

In Amit Sarkar v. Post Graduate Institute of Medical Education &

Research, Chandigarh,132 While holding Post Graduate Institute of Medical
Education & Research (PGI), Chandigarh guilty of medical negligence,
National Consumer Dispute Redressal Commission upheld the order of
Chandigarh State Commission and also enhanced the total compensation from
Rs 10 lakh to Rs 20 lakh in case of death of a girl due to delay in treatment. The
Commission was hearing an appeal filed by the parents of the deceased
challenging the order of Chandigarh State Commission vide which the Institute
was directed to pay Rs 7 lakh and Chandigarh Transport Undertaking (CTU) to
pay Rs 3 lakh to them. The parents of the deceased approached National
Consumer Dispute Redressal Commission for enhancement of compensation
awarded by the State Commission. Post Graduate Institute of Medical
Education & Research (PGI), Chandigarh had also filed appeal before
Commission in the matter. The facts of the case are that a schoolgirl aged
about 16 years, on her way from her school to residence was crushed by a
Chandigarh Transport Undertaking (CTU) bus when she was attempting to

130. Id., at section 13(3A).

131. Id., at section 18.
132. 2015 SCC OnLine NCRDC 13 decided on 21.05.2015.
 131

board it in July 2012. She was admitted into Advance Trauma Centre (ATC) of
Post Graduate Institute of Medical Education & Research (PGI), Chandigarh.
Due to medical negligence and incompetence, her leg got infected and her left
lower limb was amputated in an attempt to prevent the gangrene from spreading
to other parts of the body. Later as the doctors of the Institute failed to check or
control the spread of gangrene, it led to untimely death of the girl. The parents
had alleged that the girl died due to delay in proper treatment and negligence on
the part of the doctors of the Institute. In its defense, Institute submitted that the
deceased was planned for surgery at the time of admission itself, but the
procedure was delayed due to heavy rush of patients in the hospital. After
perusing the material on record, which included report provided by eminent
doctors in the case and hearing both the parties, National Consumer Dispute
Redressal Commission held the Institute guilty for medical negligence and
noted that, it may be pertinent to note that O.P.No.1-Hospital is a prestigious
medical institute. Therefore, it is expected from such institute that it should
work not in a purely bureaucratic manner i.e. patient should be treated as per
seniority in the queue, but it should be run in a professional manner. The
medical surgeries, operations and other emergency treatments are to be
administered keeping in view the nature of ailment, seriousness and other
exigencies as per the best judgment of the treating doctor. In the present case, it
is an admitted fact that condition of the patient was quite serious from the time
she was admitted in the Hospital. Keeping in view the nature of ailment from
which the patient was suffering, O.P. No.1-Hospital should not have insisted on
red tapism. On the other hand, it is really unfortunate that due to the
bureaucratic approach and red tapism adopted by O.P. No.1-Hospital, a precious
life of young girl could not be saved. While upholding the order of State
Commission, National Consumer Dispute Redressal Commission dismissed the
appeal filed by the Institute and increased the amount of compensation in the
matter. We deem it appropriate to award a further sum of Rs.10,00,000/-
(Rupees Ten Lacs only) to the appellants, since they have to bear with all the
trauma, mental agony, pain and sufferings, throughout their remaining life,
National Consumer Dispute Redressal Commission noted.133

133. Ibid.
 132

3.9.8 PROCEDURE POWERS OF CONSUMER FORUM

The Power of District Forum is given under Section 13 (4) and the
powers of the National Commission are elaborated under Section 22, 22A, 22B,
of the Consumer Protection Act, 1986.134

3.9.8.1 District Forum

The District Forum for disposing-off the complaints shall have the same
powers as are vested in civil court under Code of Civil Procedure, 1908 these
powers include.135

a. Power of summoning and enforcing the attendance of any defendant or

witness and examining the witness on oath.
b. Power as or the discovery and production of any document or other
material object producible as evidence.
c. Power pertaining to the reception of evidence on oath.
d. Power as to the requisitioning of the report of the concerned analysis or
test from the appropriate laboratory or from any other relevant source.
e. Power of issuing of any commission for the examination of any witness.
f. Power as to any other prescribed matter.

3.9.8.2 State Commission

State Commission has same procedural powers as that of District Forum

as to the summoning and enforcing the attendance, discovery and production of
any document, reception of evidence on oath, issuing of any Commission for
the examination of any witness, etc. on the application of the complainant or of
its own motion, the State Commission at any stage of the proceeding transfer
any complaint pending before the District Forum to another District Forum
within the state if the Interest of justice so requires.136

3.9.8.3 National Commission

National Commission has some procedural powers pertaining to

summoning and enforcing the attendance discovery and production of any
document, issuing of any commission, etc. The National Commission has power

134. Supra note 1 at 91.

135. Id., at section 13(4).
136. Id., at section 17 A.
 133

to set aside ex-party order passed by it against the opposite party or a

complainant.137 National Commission has power to set aside ex-party orders
passed by it against the opposite party or a complainant.138 National
Commission has power to transfer any complaint pending before the District
Forum of one State to a District Forum of another State or before one State
Commission to another State Commission. National Commission can exercise
its power to transfer the cases on application of the complainant or on its own
motion.139

In Himanchal Kumari v. Govt. of NCT of Delhi,140 while holding the

doctors of one of the government hospitals, guilty of medical negligence,
National Consumer Dispute Redressal Commission has directed Delhi
Government to pay a compensation of Rs 8 lakh to the legal heirs of a person
who died due to excessive dose of radiation field applied on his body during
radiotherapy. Said order of the Commission was pronounced on a revision
petition filed by wife and children of deceased who were dissatisfied with the
compensation of Rs 5 lakh awarded by the State Commission. Another revision
petition was also filed in the same matter by Delhi Government seeking reprieve
from the liability to pay compensation. Earlier, the deceased had undergone an
operation for removal of a malignant tumor cell of D-7 Vertebra in G.B. Pant
Hospital but as he developed the same symptoms again, he was referred to Lok
Nayak Jai Prakash Narain (LNJP) hospital for some tests and Radiotherapy. In
LNJP, due to lack of proper monitoring and excessive heat on the affected
portion of the body during Radiotherapy, he suffered paralysis below the chest
and ultimately passed away. Complaint was filed before District Forum alleging
medical negligence in the matter by the legal heirs. The Forum awarded Rs. 8
lakh for compensation which was later reduced to Rs. 5 lakh by the State
Commission. After careful perusal of material on record, National Consumer
Dispute Redressal Commission observed that there was not only lack of proper
supervision on the part of the treating doctor when the deceased was being
subjected to Radiotherapy, even the dose prescribed for radiation was excessive,

137. Id., at section 22.

138. Id., at section 22 A.
139. Id., at section 22 B.
140. 2015 SCC OnLine NCDRC 6 decided on 27.01.2015.
 134

which was the cause of the death of the deceased. Commission noted that as the
negligent doctors were on pay rolls of the government hospital, Government is
liable to pay compensation. National Consumer Dispute Redressal Commission
further noted that the deceased was employed as an Assistant Engineer in a
private company; at the time of his death he was the sole bread earner in the
family consisting of four members; the loss of dependency on his death at the
young age of about 46 years; we are of the view that restoration of the amount
of compensation of 8,00,000 awarded by the District Forum would be just and
adequate compensation.

3.9.9 ADDITIONAL POWERS OF THE CONSUMER FOURMS

The National Commission, the State Commission and the District Forum
are vested with additional powers. Such as:

a. To require production of any books, accounts, documents, or

commodities from any person, examining and retaining them;
b. To obtain information required for the purpose of the proceeding from
any person; and
c. To enter and search any premises and seize from such premises books,
papers, documents, commodities required for the purpose of proceedings
under the Act.141

In Sanjay Gadekar v. Sangamitra @ Sandhya Khobragade,142 the

complainant was suffering from abdominal pain visited Government Medical
College and Hospital (GMCH) at Nagpur. UGC was performed and she was
diagnosed as a case of gall stone. Because of wrong treatment the patent
suffered huge pain. Thus, the complainant alleged that instead of laparoscopic
surgery, as promised, the OP carried out, upon cholecystectomy, without
explaining the consequences. Hence, on grounds of medical negligence, the
complainant filed a complaint against the OP, before the Maharashtra State
Consumer Redressal Commission claimed compensation of Rs. 8,50,000/ with
Penal action. Therefore, based on the facts and circumstances of the case, the
allegation of medical negligence is not proved complaint stands dismissed.

141. Supra note 1 at 93.

142. 2016 (3) CLT 14 (NC).
 135

3.9.10 RELIFE GRANTED BY CONSUMER FORUM

After conducting the proceedings, the District Forum is satisfied that

goods complaint against suffers from any defect then, it shall issue an order to
opposite party directing him to do one or more of the following things:

a) To remove the defects pointed out by the appropriate laboratory from

the goods in question.
b) To replace the goods with new goods for similar description which shall
be free from any defect?
c) To return to the complainant the price or as the case may be, the charge
paid by the complainant.
d) To pay such amount as may be awarded by it as compensation to the
consumer for any loss or injury suffered by the consumer.
e) To remove the defects in goods or deficiencies in the service in question.
f) To discontinue the unfair trade practice or the restrictive trade practice
or not to repeat them.
g) Not to offer the hazardous goods for sale.
h) To withdraw the hazardous goods from being offered for sale.
i) To cease manufacture of hazardous goods and to desist from offering
services which are hazardous in nature?
j) To pay such sum as may be determine by it, if it is of the opinion that
loss or injury has been suffered by a large number of consumers who are
not identifiable conveniently.
k) To issue corrective advertisement to neutralize cost of the opposite party
responsible for issuing such misleading advertisement.
l) To provide for adequate costs to parties.143

Consumer Forum can only grant the above mentioned reliefs and not
beyond that. Every proceeding under section 14(1) shall be conducted by the
President of the District Forum and at least one member sitting together. Every
order made by the District Forum shall be signed by the President and the
member or members who have conducted the proceedings. In complaints of
medical negligence the reliefs sought are:

143. Id., at section 14(1).

 136

a) Payment of compensation.
b) To return to the complainant the price or as the case may be, the charges
paid by the complainant.
c) To remove the deficiencies in the service in question.
d) To discontinue the unfair trade practice or the restrictive trade practice
or not to repeat it.
e) To desist from offering services which are hazardous in nature.
f) To pay such sum as may be determined by it, if it is of the opinion that
loss or injury has been suffered by a large number of consumers who are
not identified conveniently. But the minimum amount of sum so payable
shall not be less than five percent of the value of such defective service
provided to such consumers.144

In Bar Council of India v. Union of India145, Civil liability, i.e.,

monetary compensation can be fastened under the general law by pursuing a
remedy before appropriate civil court or consumer forums. An action seeking
imposition of the civil liability on the erring medical professional is initiated by
dependents of the deceased patient or by the patient himself (if alive) to seek
compensation. Doors of permanent lok adalats, constituted pursuant to the Legal
Services Authority Act, 1987, can also be knocked at by a complainant seeking
relief in the relation to services in a hospital or dispensary which are considered
to be public utility services within the meaning thereof, wherein first a
conciliation is attempted and thereafter determination on merits of the matter is
made. Permanent lok adalats are conferred powers akin to that of a civil court in
specified matters (such as summoning and enforcing the attendance of
witnesses) and have jurisdiction in the matters up to Rs. 1 Crore.

3.9.11 APPEAL

Appeals can only be filed with the State Commission and National
Commission, i.e. only State and national Commission has appellate jurisdiction.
Any person aggrieved by an order made by the District Forum may prefer an
appeal against such order to the State Commission under Section 15. Any

144. Rao Y.V. Law Relating to Medical Negligence, (2010) 207.

145 . (2012) 8 SCC 243.
 137

person aggrieved by an order to the State Commission may prefer an appeal

against such order to the National Commission under section 19 of the
Consumer Protection Act, 1986. Any person aggrieved by an order made by the
National Commission in exercise of its power, may prefer an appeal against
such order to the Supreme Court.

In case of failure to comply with the order, the person responsible for
that is liable to be punished with imprisonment for a term which shall not less
than one month but which may extend to three years or with fine which shall
not be less than Rs. 2000 but which may extend to 1000 or with both. 146 An
appeal against order passed under section 27, both on facts and on law, shall lie
from:

a. The order made by the District Forum to the State Commission,

b. The order made by the State Commission to the National Commission,
and
c. The order made by the National Commission to the Supreme Court.147

3.9.11.1 Appeal to the State Commission

Any person aggrieved by an order made by the District Forum may

prefer an appeal against such order to the State Commission within a period of
thirty days from the date of the order. The Commission may entertain an appeal
after the expiry of said period of thirty days if it is satisfied that there was
sufficient cause for not filing it within that period.148 No form has been
prescribed for filling the appeal. An appeal may, however contain the following:

Before Hon’ble State Commission at ………………………………. (Place).

 Name and full address of Appellant(s)

 Name and full address of Respondent(s)
 Details of order appealed against (Name of authority passing order,
order number and date)
 Date when order appealed against was received
 Statement of facts

146. The Consumer Protection Act, 1986, section 27.

147. Id., at section 27A.
148. Id., at section 15.
 138

 Grounds of appeal
 Reliefs claimed
 Place, date and signature.149

Certified copy of order appealed against should be enclosed. If there is

delay in filing appeal, application for condonation of delay supported by an
affidavit giving reasons should be separately submitted. It is necessary that
before filing appeal before the State Commission, the appellant should deposit
50% of the amount determined to be payable in terms of the orders of the
District Forum or twenty-five thousand rupees, whichever is less.150 The memo
of appeal shall be presented by the appellant or his authorized agent to the State
Commission in person or be sent by registered post to the Commission

An appeal filed before the State Commission shall be heard as

expeditiously as possible and an endeavor shall be made to finally dispose of
the appeal within a period of ninety days from the date of its admission. No
adjournment shall be ordinary granted by the State Commission unless the
sufficient cause is shown and the reasons for granting the adjournment have
been recorded in writing by such Commission.151 In Ved Prakash Yadhav v.
Nihal Singh & others,152 the complainant came to the hospital with severe pain
in the abdomen. He brought with him X-ray and an ultrasound report advised by
another doctor. On the basis the complainant was diagnosed as a case of peptic
ulcer, which had perforated and caused peritonitis and needed immediate life-
saving surgery. The operation was successful and the complainant’s life was
saved. When stiches were removed his condition was healthy and had no
complaints. After 9 months complainant developed incisional hernia. He
consulted to another doctor. The doctor stated that the operation conducted was
wrong due to which he has to suffer. Alleging the medical negligence complaint
was filed. Therefore State Commission said that we do not find any element of
medical negligence. The State Commission ordered payment of Rs. 16000/ on
the basis of goodwill Gesture; which is not prescribed under any law. Therefore
we set aside the order of State Commission.

149. Supra note 110 at 1337.

150. The Consumer Protection Act 1986, Proviso to section 15.
151. Id., at section 19A.
152. 2013 (3) CLT 516 (NC).
 139

3.9.11.2 Appeal to National commission

Appeal against order passes by the State Commission in exercise of its

original jurisdiction made to the National Commission within 30 days of the
passing of the order.153

Appeal to the National Commission under Section 19 doesn’t lie in the

following cases:

a. Order of State Commission issues under Section 17(a)(ii), i.e. orders in

case of appeal filed against order of District Forum,
b. Order of State Commission under Section 17(b), i.e. to call for orders of
any consumer dispute lying with or decide by the District forum for
appropriate orders to be passed.

Memorandum of appeal shall be presented by the appellant or his agent

to the National Commission in person or be sent by registered post addressed to
the Commission. Every memorandum filed shall be in legible handwriting
preferably typed and shall set forth concisely under district heads and such
grounds shall be numbered consecutively. When the appeal is presented after
the expiry of the period of limitation, the memorandum shall be accompanied
by an application supported by an affidavit setting for the facts on which the
appellant relies to satisfy the National Commission that he has sufficient cause
for not preferring the appeal within the period of limitation. The appellant shall
submit six copies of the memorandum to the Commission for the official
purpose.

An appeal filed before the National Commission shall be heard as

expediously as possible and an endeavor shall be made to finally dispose of the
appeal with a period of ninety days from the date of its admission. The order of
the National Commission shall be communicated to the parties concerned free
of cost.

In Bibekananda Panigrahi v. Prime Hospitals Ltd.,154 The doctor/patient

relationship is at a crossroads. Some patients want the doctor calling all the
shots, deciding the best treatment path to follow. Patients miss the trust and

153. Id., at section 19.

154. 2015 SCC Online NCRDC 1404, decided on 3-8-2015.
 140

warmth found in the personal bond with a caring, competent physician.

Boundaries in the doctor-patient relationship is an important concept to help
health professionals navigate the complex and sometimes difficult experience
between patient and doctor where intimacy and power must be balanced in the
direction of benefiting patients, observed National Consumer Dispute Redressal
Commission while dismissing the charges of medical negligence leveled against
a doctor. The Commission was hearing an appeal filed by a person, whose
father had appendicitis, and after the operation was performed by the
Respondent Doctor, the patient developed fecal fistula, subsequently suffered
septicemia and thereafter passed away. Alleging medical negligence, appellant
approached State Consumer Commission and argued that his father had
appendicitis, which could be treated by medicines. Also the operation was not
performed properly by the Respondent Doctor, due to which the patient
developed fecal fistula and died. State Commission dismissed the complaint and
feeling aggrieved, appellant filed appeal before National Consumer Dispute
Redressal Commission. After perusing the medical history of the patient and
hearing both the parties, National Consumer Dispute Redressal Commission
observed that patient was presented with acute appendicitis and high fever. The
patient’s blood sugar at the time of admission was also very high. As the patient
was diabetic; it was the additional cause for poor healing of wound. The
Commission also went through medical literature and several books on surgery
and noted that when the appendix is perforated or gangrenous with peri-
appendicitis, the frequency of septic complications reaches as much as 30%
which includes wound infection, intra-abdominal abscess, fistula formation, and
localized or diffused peritonitis. The OP (Doctor) took utmost care and operated
upon him as an emergency. The fecal fistula developed due to patient’s health
condition. The patient was highly diabetic with high blood urea and creatinine
levels. Further, OP (Doctor) took proper care of the fistula by providing regular
dressing and antibiotics to the patient. The death occurred due to multiple
factors. We do not find any negligence either during the appendectomy surgery
or during treatment of fecal fistula. Therefore the appeal is hereby dismissed,
noted the Commission while dismissing the appeal.155

155. Ibid.
 141

3.9.11.3 Appeal to Supreme Court

Any person aggrieved by an order made by the National Commission in

exercise of its original jurisdiction may prefer an appeal against such order to
the Supreme Court within a period of thirty days from the date of the order. 156
The delay in filing the appeal may be condoned by the Supreme Court on
showing the sufficient cause. An appeal shall not be entertained by the Supreme
Court unless the appellant deposits rupees fifty thousand or fifty percent of the
amount ordered by the National Commission whichever is less. There is no
provision under the Consumer Protection Act for appeal against order of the
National Commission passed in its revision order appellate jurisdiction. In these
cases the only remedy is by way of writ in the High Court under Article 226 or
special leave petition (SLP) to Supreme Court under Article 136.157

3.9.12 REVISION

The District Forum after hearing both the parties found that instead of
dismissing the petition for adducing evidence, by mistake, the main consumer
dispute was itself dismissed without affording any opportunity to the parties.
Therefore, the District Forum committed an error apparent on the face of the
record and them, therefore, felt that the consumer dispute should be restored and
disposed of on merits in the interest of justice. But it appeared from the order of
the District Forum that it dismissed only the petition for the adducing evidence
and not the main consumer dispute. The dismissal order passed in the consumer
dispute was purely a mistake. The District Forum was therefore, justified in
correcting the mistake and restoring the consumer dispute to life.158

3.9.12.1 State Commission

Section 17 of the Consumer Protection Act, 1986 revisional powers over

the District Forum to be exercised by the State Commission, by exercising the
revisional power, the State Commission can call for the records and pass
appropriate order. The State Commission will apply its revisional powers only
where it appears to the State Commission that such District Forum has exercised

156. Id., at section 23.

157. Supra note 1 at 97.
158. Majumdar P.K. Law of Consumer Protection in India, (2003) 1009.
 142

a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so

vested or has acted in exercise of its jurisdiction illegally or with material
irregularity. The State Commission has no power to review its earlier order.159

3.9.12.2 National Commission

The National Commission has powers to revise the orders of the District
Forum and State Commission when they have exercised the jurisdiction which
did not vest in them or have failed to exercise the jurisdiction so vested in them
or acted in exercise of its jurisdiction illegally or with material irregularity.160

In a case concerning death of four new born babies due to absence of

proper medical attention, National Human Right Commission recommended a
compensation of rupees one lakh each to the next of kin of four new born
babies. The matter relates to Community Health Centre, Jugsalai, Jamshedpur
where during the intervening night of 14th – 15th December, 2013, four new
born babies died due to medical negligence of the doctors and other staff
members. Earlier, a complaint regarding the matter came up before the
Commission, while in turn took cognizance of the case. After perusal of the
material on record which included the enquiry report of the Civil Surgeon,
Commission noted that all the four new born babies were in good health at the
time of birth at the Community Health Centre, Jugsalai late in the intervening
night of 14th & 15th December, 2013. There was no doctor on duty as the 15th
December, 2013 was Sunday and the Officer-in-Charge of the Community
Health Centre had not prepared the Duty Chart. Baby Warmer was also not
available at Community Health Centre. The Commission further observed that
due to the negligence of the doctors and unavailability of proper medical
attention, babies died. The incident also remained unrevealed till the fourth day
i.e. December 17, 2013, on which date it was brought to the notice of the Civil
Surgeon who conducted an enquiry in the case. It was also submitted before the
Commission that departmental proceedings were underway against the erring
Officer-in-Charge for the negligence. While rendering relief to relatives of the
babies, Commission recommended a compensation of Rs.4 lakh in all four cases

159. Supra note 1 at 98.

160. The Consumer Protection Act, 1986, section 21(b).
 143

and also directed Chief Secretary, Government of Jharkhand to submit the

compliance report along with the proof of payment within four weeks.161

3.9.13 FINALITY OF ORDER

Every order of District Forum, the State Commission or the National

Commission shall, if no appeal has been preferred against such order be final.162

3.9.14 ENFORCEMENT OF ORDERS

Every order of the District Forum, the State Commission or the National
Commission can be executed as a decree of the Civil Court and in case of its
inability, the order can be sent to the court within the local limits of whose
jurisdiction the opposite party voluntarily resides, carries on business or
personally works for gain. In case an interim order made under the Consumer
Protection Act is not complied with, the Forum making such interim order may
order for the attachment of the property of the person not complying with such
order. If this non-compliance continues for period exceeding three months, the
property attached may be sold by the forum and out of the proceeds thereof
damages may be awarded to the complainant and balance amount shall be paid
to the party entitled thereto. Where any amount is due from any person under an
order made by any Forum under the person entitled to the amount can make an
application to the Forum for issuance of certificates for the amount due. The
Forum may issue a certificate on such application to the collector of the District
and the collector shall proceed to recover the amount as arrears of land
revenue.163

The Forum has been given power under section 27 to impose penalty on
the opposite party for his failure to comply with the orders of the Forum. In case
of failure to comply with the orders, the person responsible for that is liable to
be punished with imprisonment for a term which shall not be less than one
month but which may extend to three years or with fine which shall not be less
than Rs. 2000 but which may extend to 10,000 or with both.164

161. nhrc.nic.in, 12 January, 2016.

162. Id., at section 24.
163. Id., at section 25.
164. Thakur Shweta and Jaswal Vikram Singh, Medical Negligence in India, 2013.
 144

3.9.15 LIMITATION
3.9.15.1 The Limitation Act, 1963
A very aspect of initiation and maintainability of legal proceedings is the
law of limitation. The basis of the proposition is that when a person has suffered
any wrong, he must not waste time which may signify laches on his part or even
prove that he has waived his rights or has acquiesced the wrong. The maximum
period within which action must be initiated, i.e., suit, petition, application or a
complaint must be filed, is the limitation for such proceedings. Such period may
be prescribed by an Act governing various proceedings in general, like the
Limitation Act, 1963 which prescribes the time limit for initiation various
proceedings. It may also be prescribed in a particular Act to govern certain
special actions. If that period expires then the remedy is time-barred, i.e.,
unenforceable at law. The Limitation Act, 1963 prescribes the statutory period
within which legal proceedings may be initiated for adjudication of various
suits, petitions, appeals, applications, review, revision and such other legal
actions. However, there is no contemplation in law to invoke principles of
equality to extend the prescribed period of limitation by excluding some time to
calculate the same.165
3.9.15.2 Whether Remedy gets extinguished
a. The statute does not extinguish but only bars the remedy after the
prescribed period has expired.
b. In case such remedy becomes barred by time, a subsequent change in
law extending the period of limitation will not by itself revive the
remedy.
c. The law of limitation in force at the time of institution of legal
proceedings is applicable to such proceedings.166

3.9.15.3 Cause of Action

The limitation cannot run unless cause of action is culminated and right
to sue accrued in favour of the person initiating legal proceedings. The Act bars
only the remedy which is time-barred without affecting the rights in respect of

165. Kaushal, K. Anoop, Medical Negligence and Legal Remedies with special reference to
Consumer Protection Law, (2006) 76-77.
166. Ibid.
 145

personal actions. But when time has commenced to run in any case, it will not
stop by reason of any subsequent event which may be within the saving of the
statute. The basis of determination of limitation is the form and substance of the
plaint of a suit and not the defense set up thereof.167
In Sujitha K.P. V. National Hospital,168 in this case patient had filed a
complainant during his life time making allegations that the respondent hospital
was negligent in the manner of testing his blood group and subsequent
transfusion of wrong blood. He died during the pendency of the case. His legal
heirs sought implement without amending the complainant. Held, maxim Actio
Personalis Moritur Cum Person i.e. personal action dies with the person is
attracted. The complaint related to the personal injury caused to the
deceased/complainant on account of alleged negligence in giving wrong group
of blood. The complainant himself fields the complaint and as he was alive
when he filed the complaint and as he was alive when he filed the complaint he
could not have stated that the transfusion of wrong group of blood resulted in
his death. Legal representatives have also no case that the wrongful action
resulted in the death of the complainant they may institute fresh complainant.
However if they have a case that really the transfusion of blood resulted in the
death of the complainant they may institute fresh complainant. Cause of action
arises in such cases only after the death of the complainant and therefor no
question of limitation would apply to such a case.
3.9.15.4 Writ jurisdiction
In so far as the writ jurisdiction under Article 226 of the Constitution of
India is concerned, there is no limitation prescribed for filing a petition in the
High Court. It is the peculiar facts and circumstances of each case that would
determine if the party invoking the jurisdiction under Article 226 is guilty of
laches.
3.9.15.5 Criminal Prosecution

Usually, time is not prescribed for launching criminal prosecutions in

respect of an offence but if there is statutory period prescribed, it has to be
strictly followed.

167. Ibid.
168. 1997 (1) CPR 231.
 146

3.9.15.6 Condonation of Delay

In particular suits, the date of filing thereof, determines the limitation

and not the account of cause of action. Section 3 of the Limitation Act clearly
stipulates, inter alia, that subject to provisions contained in section 4 to 24,
every suit instituted, appeal preferred, and application made, after the prescribed
period, shall be dismissed, although limitation has not been set up as a defense.
However, if the period prescribed expires on a day when the court is closed,
then the period prescribed expires on a day when the court is closed, then the
aforesaid proceedings may be initiated on the day when the court reopens in
terms of section 4. Even otherwise, condonation of delay may be allowed under
section 5 provided sufficient cause is shown and for that matter if a person is
misled by any order, prescribed period, it may constitute sufficient cause says
explanation to sections.169

Section 6 and 7 deals with the legal disabilities in instituting the

proceedings. Section 18 envisages that where before the expiration of the
prescribed period for a suit or application, an acknowledgement of liability in
respect thereof has been made, fresh period of limitation shall be computed
when the acknowledgement was so signed. Section 25 makes the right to access
and use of light or airway, water course, use of water, or other easement
absolute and indefeasible if the same had been subject of uninterrupted use for
twenty years.170

3.9.15.7 Act not in Derogation of other Laws

As it has been already discussed, section 3 of the Act contemplates that

its provisions shall be in addition to and not in derogation of the provisions of
any other law for the time being in force.171

3.9.15.8 Section 24A of Consumer Protection Act, 1986

The Consumer Protection (Amendment) Act, 1993 introduced a new

section 24A prescribing the limitation period. It specifically provides that the
District Forum, the State Commission or the National Commission shall not

169. The Limitation Act, 1963, section 5.

170. Supra note 65 at 78.
171. The Limitation Act, 1963, section 3.
 147

admit a complaint unless it is filed within two years from the date on which the
cause of action has arisen. However, the delay may be condoned provided the
reasons for condoning such delay are recorded. It is pertinent to mention that the
words used in this section are shall not admit. It has been held that the use of
word shall raise a presumption that the particular provision is imperative;172
Govindlal Chagganlal Patel v. Agriculture Produce Market Committee,173 read
together, the words are negative. These words are to be interpreted as usually
mandatory, subject to be intended behind the use of such words; Bombay Union
of Journalists v. State of Bombay,174 the word admits as per Legal Glossary
means to accept for the purpose of consideration. In view of the above, it may
be understood that the words shall not admit construe that the complaint may be
dismissed at the threshold and even no notice may be issued to the opposite
party. However, this view is subject to any case law. In case a claim could be
settled under some special law relating to compensation, etc., the Consumer
Court may enlarge the application of time prescribed therein and one may enjoy
the privilege of being a consumer. In Apex Roller Flour Mills (P) Ltd. v. Indian
Overseas Bank,175 it has been held that complaint in respect of which cause of
action accrued before inserting of section 24A can be filed within three years
under the general law of limitation.

3.9.15.9 Recurring Cause of Action

Transaction may be subsisting in so many ways. There may be written

correspondence. Then there may be series of payments and issuing of receipts in
token of acceptance. One may have served a notice which had gone unreplied.
On the other hand, one may have relied upon the rectification offered by the
opposite party or believed his assurance. In case of deficiencies, time comes
into picture when it comes to one’s knowledge. Then there may be
acknowledgment by the opposite party. The best time to launch a prosecution is
immediately after one has suffered a wrong and then notified its detection and
called upon the opposite party to make amends. In the busy, hectic pre-occupied
life style, one may be as much spontaneous. So one could keep a watch that the

172. Supra note 165 at 79.

173. AIR 1976 SC 263.
174. AIR 1964 SC 1617.
175. 1995 (1) CPR 468 (TN SCDRC).
 148

time does not run out, without even knowing it. In the context of medical
negligence, cause of action accrues in favour of the complainant when:176

a) Patient for the first time approaches a doctor.

b) Every time the patient approaches the doctor.
c) The last time the patient approaches the doctor.
d) The patient is advised to undergo any test.
e) Any clinical diagnosis is arrived at by the doctor.
f) When the diagnosis is not conclusive and the doctor seeks second
opinion or refers the patent to a specialist.
g) Some medicine is prescribed by the doctor.
h) Some medicine is actually consumed by the patient.
i) Some procedure is started on a patient, during the continuation of that
procedure and on completion of that procedure or series of procedure.
j) Some surgery is started on a patient, during the continuation of that
surgery and on complication of that surgery or series of surgeries.
k) On detection for the first time, the alleged complication due to wrong
medicine, wrong procedure or negligent surgery.
l) Throughout during the continuation of the complication.
m) Patient is under post-operative care.
n) The patient is discharged.
o) The patient revisits for follow-up, on each visit.
p) On sudden surfacing of a problem or complication, even much later after
discharge or follow-up, if the same is directly related to the treatment.
q) On development of each complication if it is a case of chain reaction of
complications.
r) On actual loss of limb or organ due to negligence on complication.
s) On death of a patient, if cause can be directly related to the treatment.
t) On corrective treatment or rectification surgery, if the subsequent doctor
or surgeon is of the opinion that earlier treatment was negligent and the
main disease could have been cured other than by second correction.
u) In fact at the micro-level, cause of action, in cases of medical
negligence, inter alia, arises on each inhalation and exhalation of the

176. Supra note 165 at 79-80.

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breathing of a patient, each heart beat and pulse rate of the patient, since
it is a human life. So the mathematical calculation of within two years
from the date on which the cause of action has arisen may be something
non-biological and hence, depends on facts and circumstances in each
case unlike other commercial contract and transactions.

There is another peculiar situation when the patient leaves the custody of
his doctor without permission and without any formal discharge or even against
the wishes of the doctor (LAMA). To determine whether cause of action would
still run recurring against such a previous doctor for any complication detected
in future again would depend on a very micro-scale of facts and circumstances
of the case.177

3.9.15.10 Commencement of the Act and Cause of Action

There is no bar in the Act in respect of adjudication of disputes where

cause of action arose prior to the commencement of the Act, so long as the
cause of action is not extinguished under the limitation prescribed under the
Act, as on date of institution of the complaint. In the Redressal
Forum/Commission, the accrual of cause of action dating back prior to the
commencement of the Act will not deprive a consumer to seek relief as
envisaged under the Act. Thus, generally the cause of action as on date of filing
the complaint should be subsisting one and legally enforceable under the
limitation, as aforesaid.178

3.9.15.11 Stale Claims

The idea is two-fold. One is to certainly shun stale claims. Some of us

may try to reincarnate our claims long dead and invoke the provisions of this
very popular legislation to get through. Sorry, the Act is certainly not a device
to shove up such procrastinated claims but a source to enforce rights within
such period, i.e., reasonable and equitable but certainly not surpassing the strict
tenets of law. Second is to facilitate relief to such consumer whose claim though

177. Supra note 165 at 80-81.

178. Ibid.
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may have travelled a long distance and time may be spent, but the aggrieved
consumers were diligent enough to keep the transaction alive.179

3.9.15.12 Supreme Court on Limitation

There are decisions to support the aforesaid view wherein the consumer
courts have elucidated the parameters which determine the question of
limitation under the Act while deciding consumer disputes of different kinds.
For instance, in V. Balasubramaniam & Bros. v. New India Assurance Co.
Ltd.,180 the National Commission while deciding an insurance claim held that
the Limitation Act, 1963 is applied on the grounds that it will not be conducive
to have stale claims brought before the Forum. To hammer the point home, it
was held that, time and again, it has been pointed by the Supreme Court of
India that it is not proper that the Government and instrumentalities of State
should seek to avoid the adjudication of a claim made against them merely on
the technical plea of bar of the limitation, when there has not been any manifest
and deliberate laches on the part of the citizen putting forward the claim.

3.9.16 PENAL PROVISIONS

3.9.16.1 Abuse of the Act

Remember, the Consumer Protection Ac, 1986 like every other statue
has the same sanctity of protection and enforcement of rights. It is not to be
used as a tool to blackmail one’s opponents or cultivate mercenary grains. As a
law abiding citizen and as a healthy consumer, one should never abuse the
process of the Act.181

3.9.16.2 Frivolous and Vexatious Complaints

Section 26 of the Act clearly stipulates that complaints found to be

frivolous or vexatious shall face dismissal. It means that the Court would
definitely apply its mind to contemplate the bona fides of allegations to test the
truth and veracity of evidence and to ensure that relief claimed is not offered on

179. Ibid.
180. I (1992) CPJ 313
181. Kaushal K. Anoop, Medical Negligence and Legal Remedies with special reference to
Consumer Protection Law, (2006) 82.
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a platter. And in case it appears that one has come to the court just for fun, one
should be ready to be handed over the dismissal order.182

3.9.16.3 Imposition of Costs

One’s conduct in the Court would betray one’s intentions and a chronic
litigant or nuisance monger may only be out of court but may have to pay costs,
which may extend to Rs. 10,000.

3.9.16.4 Imprisonment and Fine

A doctor, an opposite party or a complainant/patient himself, may have

to go behind the bars and may have to pay a thousand rupees. Section 27 of the
Act is a penal section prescribing punishments for flouting the orders passed
under the Act. Non-compliance of any order made by the District Forum, the
State or National Commission warrants imprisonment from one month to three
years and/or fine from Rs. 2,000 to Rs. 10,000. This is the last straw. It ensures
that the Forums are not taken for granted. It indisputably establishes the
sanction of the law, no matter how simple the procedure it has adopted and how
summary the trial. It proves that the government has taken up consumer cause
on a war footing.

It guarantees that nobody shall be spared if he is found guilty of abusing

the consumers of the society and then with rampant impunity commits flagrant
violation of the orders passed under it. Similarly, the complainant is duty bound
to comply with the orders passed under the provisions of the Act. It is actuated
with a design to ensure that the provisions are complied with. It is stepping
stone towards arming this Act with teeth. It will not be out of place to imagine
that in the years to come, the jurisdiction, powers and machinery of the
Consumer Protection Act, 1986 would be broadened and made more
stringent.183

The provision enshrined under section 26 and 27 of the Act ensure a

statutory safeguard against false and chronic litigants. The arms of the law
should not be twisted around an innocent neck. That is the principle. These
provisions are intended to check harassing complaints and actions initiated with

182. Ibid.
183. Id., at 83.
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oblique motives to achieve unlawful gains and unearned the social legislation.
Perhaps the absence of payment of any court fee in these proceedings
encouraged adventurist litigation and ambulance chasing. However under the
amended provisions the complainant has to pay court fee…. But the patient
should keep in mind that doctors are not always at the receiving end, in the case
of a frivolous complainant. The physicians should also practice their noble art
without any unjustified fear of indictment.184

The Consumer Protection Act, 1986 intended to protect large body of

Consumers, i.e. patients in case of medical negligence from exploitation. It
provides an alternative system of consumer justice by summary trail. Three-tier
consumer dispute redressed machinery has been set under the Act which
provide inexpensive and speedy redressal. Any person who has rendered
services of a doctor for consideration is a consumer. Any patient, his legal heirs
or any voluntary consumer association can make a complaint before consumer
Forum. Complaint must be in writing and no court fee is to be paid on the
complaint. Limitation period for filing a complaint is 30 days. The Consumer
Forum may grant relief, i.e. to return to the complainant the price, to pay
compensation, to discontinue unfair trade practice, and to remove the
deficiencies in the services in question.

184. Ibid.