Padma Awardees Doctors’ Forum sends an appeal to the Hon’ble Prime Minister

Shri Narendra Modi Ji

Hon’ble Prime Minister of India

New Delhi

Date: 31^st August 2019

Subject: Consensus Statement of Padma Awardee Doctors’ Forum regarding exclusion of medical professionals from the Consumer Protection Act (CPA)

Padma Awardees Doctors’ Forum: Dr KK Aggarwal, Dr SC Manchanda, Lt General BN Sahi, Dr KK Talwar, Dr M Khalilullah, Dr Ashok Seth, Dr TS Kler, Dr Neelam Kler, Dr Mahesh Verma, Dr Arvind Lal, Dr Madan Mohan, Dr Harsh Mahajan, Dr Anoop Misra, Dr Kalyan Banerjee, Dr NP Gupta, Dr Yash Gulati, Dr AK Grover, Dr KK Sethi, Dr GK Khatri, Dr Nikhil Tandon, Dr Saumitra Rawat, Dr NK Pandey, Dr NM Shroff, Dr Raman Kapoor, Dr Ganesh Mani, Dr AK Bhalla, Dr Nitish Naik, Dr M Wali, Dr Randhir Sud, Dr RK Grover, Dr Malvika Sabharwal, Dr D Gambhir

Respected Sir,

The Consumer Protection Bill, 1986 was passed by both the Houses of Parliament and it received the assent of the President on 24^th December 1986. It came on the Statutes Book as THE CONSUMER PROTECTION ACT, 1986 (68 of 1986). The Legislature while drafting the Bill, 1986 had specifically not included the services provided by the medical professionals in the term of services. Also, there is no mention of medical professionals, doctors, etc. anyplace in the Consumer Protection Act, 1986.

The fact that there is a distinction between a profession and an occupation was the main reason for not including the medical professionals under the purview of Consumer Protection Act, 1986. A person engaged in an occupation renders service, which falls within the ambit of Section 2(1)(o) of the Consumer Protection Act, 1986; however, the service rendered by a person belonging to a profession does not fall within the ambit of the said provision. Accordingly, medical practitioners who belong to the medical profession are not covered under the Consumer Protection Act.

But, in the matter of “Indian Medical Association versus V P Shantha, AIR 1996 SC 550”, the Hon’ble Supreme Court of India held that the Consumer Protection Act, 1986 is applicable to services rendered by doctors and hospitals. The Apex Court also held that the services rendered to a patient by a medical professional are “service” within the meaning of the Consumer Protection Act, 1986 and the persons who hire or avail such services are therefore, consumers as defined under the Act with the exception that where the doctor / hospital renders service free of charge to every patient or under a contract of personal service, a patient availing of such free of charge services will not be a consumer.

Consumer Protection Act, 2019: The Consumer Protection Bill, 2019 has been passed by both Houses of Parliament i.e. Lok Sabha (30^th July 2019) and Rajya Sabha (6^th August 2019). Thus, a new law on consumer protection has been enacted i.e. the Consumer Protection Act, 2019. The new act does not include services rendered by medical professionals.

Earlier, when amendments to the Consumer Protection Act were introduced in 2015, there was no mention of “healthcare” in the list of examples of as to what constitutes “service”. The Bill said “service” means service of any description made available to potential users and includes, but is not limited to, the provision of facilities relating to banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information. It does not include the rendering of any service free of charge or under a contract of personal service.

The Bill had gone through the parliamentary committee. But in 2019, when the new Consumer Protection Bill was introduced in the Lok Sabha, “healthcare” was included in the list after telecom.

But later “Healthcare” was removed from the list of services which had been specifically mentioned earlier under the definition of services in the draft Consumer Protection Bill.

Now, in the new Act of 2019, the terms “medical profession”, “Healthcare”, “doctors”, etc. are not mentioned.

Legislative intent

While enacting both the Consumer Protection Act, 1986 and Consumer Protection Act, 2019, the draftsmen of the Legislature had specifically and intentionally not included the services rendered by medical professionals. In 2019, when the new bill was presented, the term “healthcare” was included in the draft of the Consumer Protection Bill; however, the same was later removed from the Bill.

Even though, the landmark precedents as laid down by the Hon’ble Supreme Court of India cover the medical profession/healthcare under the purview of Consumer Protection Act, the Legislature never intended to cover the services rendered by the medical professionals under Consumer Protection Act.

It is also to mention that medical professional services are not covered under GST.

Lawyers do not come under the purview of Consumer Protection Act

In the matter titled as “D. K. Gandhi versus M. Mathias”, the State Commission of Consumer Disputes Redressal Forum, Delhi, held that services rendered by a Lawyer would not come within the ambit of Section 2(1)(o) of the Consumer Protection Act, 1986, as the client executes the power of attorney authorizing the Counsel to do certain acts on his behalf and there is no term of contract as to the liability of the lawyer in case he fails to do any such act. The State Commission held that it is a unilateral contract executed by the client giving authority to the lawyer to appear and represent the matter on his behalf without any specific assurance or undertaking.

However, this verdict of the State Commission was reversed by the National Consumer Disputes Redressal Commission (NCDRC) in the Revision Petition titled as D. K. Gandhi versus M. Mathias on the ground that lawyers are rendering a service. They are charging fees. It is not a contract of personal service and that there was no reason to hold that they are not covered by the provisions of the Consumer Protection Act, 1986. It was held that though a Lawyer may not be responsible for the favourable outcome of a case as the result/outcome does not depend upon only on lawyers’ work, but, if there was deficiency in rendering services promised, for which consideration in the form of fee is received by him, then the lawyers can be proceeded against under the Consumer Protection Act.

However, the said judgement of the NCDRC has now been stayed by the Hon’ble Supreme Court in the matter titled as “Bar of Indian Lawyers vs. D. K. Gandhi”. The said case is still pending adjudication before the Hon’ble Supreme Court of India.

Thus, the question whether the lawyers are covered under the Consumer Protection Act or not is still pending before the Hon’ble Supreme Court of India. However, as on date, the lawyers do not come under the purview of Consumer Protection Act.

Appeal

The Padma Awardee Doctors’ Forum requests you to intervene so that the medical professionals are included in the exclusion list of the services under Consumer Protection Act.

Padma Awardee Doctors