A. Free medical care and consumer protection- https://ijme.

in/articles/free-medical-care-
and-consumer-protection/?galley=html

B. As per section 2 (0) of the Consumer Protection Act Services means services of any
description which is made available to potential users and includes the provision of
facilities in connection with banking, financing, insurance, transport, processing, supply
of electrical or other energy, board or lodging or both, housing, construction,
entertainment amusement or purveying a news or the information, but it does not
include the rendering of any service free of charge or under a contract of personal
services.

1. The Supreme Court of India in the case of Indian Medical Association v.V.P. Shantha
clarified the situation the Court held that:
The definition of `service' in Section 2(1) (o) of the Act can be split up into three parts - the main
part, the inclusionary part and the exclusionary part. The main part is explanatory in nature and
defines service to mean service of any description which is made available to the potential users.
The inclusionary part expressly includes the provision of facilities in connection with banking,
financing, insurance, transport, processing, supply of electrical of other energy, board or
lodging or both housing construction, entertainment, amusement or the purveying of news or
other information. The exclusionary part excludes rendering of any service free of charge or
under a contract of personal service. The inclusive part of the definition of "service" is not
applicable and we are required to deal with the questions falling for consideration in the light of
the main part and the exclusionary part of the definition. The exclusionary part will require
consideration only if it is found that in the matter of consultation, diagnosis and treatment a
medical practitioner or a hospital/nursing home renders a service falling within the main part of
the definition contained in Section 2(1) (o) of the Act.
The Supreme Court held that:
(5) Service rendered free of charge by a medical practitioner attached to a hospital/Nursing home
or a medical officer employed in a hospital/Nursing home where such services are rendered free
of charge to everybody, would not be "service" as defined in Section 2(1) (o) of the Act. The
payment of a token amount for registration purpose only at the hospital/nursing home would not
alter the position.
(6) Service rendered at a non-Government hospital/Nursing home where no charge whatsoever is
made from any person availing the service and all patients (rich and poor) are given free service -
is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The
payment of a token amount for registration purpose only at the hospital/Nursing home would not
alter the position.
-
(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as
service rendered free of charge, if the person availing the service has taken an insurance policy
for medical care where under the charges for consultation, diagnosis and medical treatment are
borne by the insurance company and such service would fall within the ambit of 'service' as
defined in Section 2(1) (o) of the Act.
Where the treatment that was given to the complainant is totally free of any charge, it does not
constitute `service' as defined under the Act and the complainant was not entitled to seek any
relief under the Act.
GIST- In 1995, the Supreme Court decision in Indian Medical Association v VP Shantha
brought the medical profession within the ambit of a ‘service’ as defined in the Consumer
Protection Act, 1986 (5). This defined the relationship between patients and medical
professionals as contractual. Patients who had sustained injuries in the course of treatment could
now sue doctors in ‘procedure-free’ consumer protection courts for compensation.
The Court held that even though services rendered by medical practitioners are of a personal
nature they cannot be treated as contracts of personal service (which are excluded from the
Consumer Protection Act). They are contracts for service, under which a doctor too can be sued
in Consumer Protection Courts.
A ‘contract for service’ implies a contract whereby one party undertakes to render services (such
as professional or technical services) to another, in which the service provider is not subjected to
a detailed direction and control. The provider exercises professional or technical skill and uses
his or her own knowledge and discretion. A ‘contract of service’ implies a 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. The ‘contract of service’ is beyond the ambit of the Consumer
Protection Act, 1986, under Section 2(1)(o) of the Act.
The Consumer Protection Act will not come to the rescue of patients if the service is
rendered free of charge, or if they have paid only a nominal registration fee. However, if
patients’ charges are waived because of their incapacity to pay, they are considered to be
consumers and can sue under the Consumer Protection Act.

2. In the case of Vijay H. Mankar v. Dr.(Mrs.) Mangla Bansod Complainant alleges

medical negligence on the part of a lady doctor, she Alleges that she paid charges for
treatment, Opposite party denied that allegations and contended that she did not receive
any fee because of close relationship. The court held that:
The preliminary objection of the opposite party is that she has not received any payment as
consideration from the complainant and that ,therefore ,'service' rendered in the case is not
covered by Section2(1)(0)of the Consumer Protection Act. However, in the order of the Supreme
Court, Indian Medical Association v. V.P. Shantha&Ors., it has been inter alia stated that
services rendered by a non Government hospital, nursing home where charges are required to
be paid by persons who are in a position to pay and persons who cannot afford to pay are
rendered services free of charge would fall within the ambit of the expression 'Service' as
defined in Section2 (1) (o) of the Act. It is true in the present case, opposite party's averment is
that fees were not charges because the patient could not afford to pay. Although in their order,
the Supreme Court have not distinguished a case of 'free' service of the kind as in the case of
hand, the spirit of their order is that expenses incurred for providing service free of charge to
certain patients are met out of income earned by the doctors and hospitals from services
rendered to paying patients and in this view of the matter the non-paying patients are
beneficiary of the services which are hired or availed of by the paying patients. That apart, the
Supreme Court observed that all persons who avail of the services of doctors are to be treated
on the same footing irrespective of the fact that some of them pay for the services and other avail
the same free of charge. Also, the complainant had deposed that opposite party had not given
receipt for fees paid and that opposite party told his mother-in-law on 31.5.1990 that she would
give consolidated receipt for all payments, after delivery. The mother-inlow has filed an affidavit
to this effect. In view of the aforesaid discussion, this point need not detain us from proceeding
with the adjudication of the complaint on merits.

3. Bolam v.Friern Hospital Management Committee- 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 McNair, 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.”
4. In the case of Dr. Ganesh Prasad and Anr. V. Lal Janamajay Nath Shahdeo, I (2006)
CPJ 117 (NC), the National Commission (Order: Per Mrs. Rajalaxmi Rao, Member)
reiterated the principle that where proper treatment is given, death occurring due to
process of disease and its complication, it can not be held that doctors and hospitals are
negligent and orders of lower fora do not uphold the claim and award a compensation. In
this case, a 4 ½ year old child suffering from cerebral malaria was admitted to the
hospital. A life-saving injection was given. As opined by the child specialist, doses were
safe and the treatment was proper. Though the death of the child is unfortunate, it can not
be said that there was negligence on the part of the doctor.
5. There is an exception for medical negligence that if a doctor does not charge fees for his
act then he cannot be sued for medical negligence under Tort as per the definition of
service which is mentioned in sec 2(1) of Consumer protection Act 1986.
6. Contributory negligence- In Rural Transport Service v. Bezlum Bibi, the conductor
of an overcrowded bus invited passengers to travel on the roof of the bus. The driver
ignored the fact that there were passengers on the roof and tried to overtake a cart. As he
swerved the bus on the right for the purpose and went on the kuchcha road, a passenger
sitting on the roof was hit by branch of a tree; he fell down received severe injuries and
then died. It was held that both the driver and the conductor were negligent toward the
passengers towards the passengers who were invited to sit on the roof. There was also
contributory negligence on the part of the passengers including the deceased who took
the risk of travelling on the roof of the bus.

The patient was supposed to go through the pre surgery procedure but his failure to do so
resulted in the complications.
7. Dr. S.K. Jhunjhunwala v. Mrs. Dhanwanti Kumar and another AIR 2018 SC 4625

where compensation claimed by the complainant patient on the basis of allegation that
the doctor was negligent in performing substituted surgery for removal gall bladder of the
complainant. It has been proved that doctor has obtained consent before performing the
substituted operation. No medical evidence of irregularities has been proved that any
specific kind of negligence on the part of the doctor. The complainant has failed to prove
that ailments allegedly suffered by her after the discharge from hospital were due to
faulty surgery performed by the doctor. Taking into considerations all the relevant facts
and evidences the Supreme Court set aside the order passed by the National Commission
holding the doctor negligent in performing the surgery and awarding compensation of Rs.
2 lakhs