Professional Documents
Culture Documents
STUDIES
School of Law
PROJECT ON
SEMESTER I
ROLL NO: 74
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Table of Content
Introduction.......................................................................................................03
Essentials...........................................................................................................04
Conclusion..........................................................................................................09
Bibliography..........................................................................................09
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Introduction
“An Act to provide for better protection of the interests of consumers
and for that purpose to make provision for the establishment of
consumer councils and other authorities for the settlement of
consumers' disputes and for matters connected therewith 1”. The
Consumer Protection Act, 19862 was the outcome of the adoption by
the United Nation of basic framework for the government of the third
world countries to strengthen consumer protection policies.3
Essentials
Statues Referred:-
1
Preamble, THE CONSUMER PROTECTION ACT, 1986 [Act, No. 68 of
1986]
2
Henceforth referred to as COPRA
3
On 09/04/1985, the General Assembly of the U.N passed the Consumer
Protection Resolution ND 39/248
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purveying of news or other information, but does not include the
rendering of any service free of charge or under a contract of
personal service.
Argument:-
First issue addressed before the bench was whether services of medical
practitioner are services under COPRA. Indian Medical Association4
contended that Law distinguish between profession and occupation and
the Act include only occupational services not those of professional
services under Section 2(1a) (o) of the Act. The Hon’ble Judge rejected
the argument of not including medical profession under the Act as
being professional services.
It was urged from side of respondent that medical services are Contract
of personal service which implies that medical services are not services
under Section 2(1) (o) as Contract of personal service is exclusionary
part of the services.
Other argument which was raised by respondent was that “service” does
not include any such term medical service, so medical service are not in
the purview of the Act.
Second issue which was raised questioned hospitals and nursing homes
are in the scope of the Act. There were made three broad categories
under which nature services of doctors/hospital can be determined:-
4
Henceforth referred to as IMA
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There is no difficulty in finding out liability in first two categories as
when services are rendered free of charge there is no service rendered
as according to Section 2(1) (o) of the Act hence excluded by virtue of
exclusionary clause of the Section. Also token money will be treated as
no consideration paid. But it will not include those independent doctors
who are rendering service free of charge. And in second category if a
person is paying consideration it will come under jurisdiction of the Act
as medical services are services and consideration is paid to avail them.
It was opined by Hon’ble Judge that since patients, who are availing
services free of charge, belonging to third category are beneficiary as
patients who are paying consideration in that category are, actually,
paying for non-paying patients too. So being beneficiary they are under
scope of the Act. Hence are treated as consumer under Section 2(1) (d)
of the Act.
A patient can bring action for negligence if any of the following duty is
breached:-
The Supreme Court of India has gone into details of what is the
meaning of negligence by medical professionals5. Considerations are
applied to infer negligence on the part of doctors. A simple lack of care,
an error of judgment or an accident, is not proof of negligence on the
part of a medical professional. A doctor cannot be held liable for
negligence merely because a better alternative course or method of
treatment was also available or simply because a more skilled doctor
would not have chosen to follow or resort to that practice or procedure
which the accused followed. He cannot be held liable as long as he
followes a practice acceptable to the medical profession.
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the alleged negligence. When it comes to the failure of taking
precautions what has to be seen is whether those precautions were taken
which the ordinary experience of men has found to be sufficient.
From the above it may be inferred that the distinction between civil and
criminal liability in medical negligence lies in the conduct of the doctor
which should be of gross or reckless or of a very high degree.
6
Andrews v. Director Public Prosecution
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The general law is that the medical professionals are liable for their
services individually as well as vicariously. The decision of the
Supreme Court in Indian Medical Association v. VP Shantha gives an
elaborate view on the civil liability that exists in case of medical
practitioners.
The launch of proceedings before the civil courts under the medical
negligence laws in India starts with the filing of the suit before the civil
court which can either be for claiming compensation from the medical
practitioner for the loss sustained or for claiming any other relief related
to the alleged act. The proceedings before the civil court are decided by
filing of the written statement by the medical practitioner and after the
leading of the evidence before court during which the court can
summon the evidence of the experts for deciding the said matters. The
final outcome of the proceedings before the civil court is by way of a
decree which is passed by the court based on the facts of the case and
after considering the entire evidence in the matter.
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Medical profession: Whether comes under Consumer
Protection Act
In Indian Medical Association v. V.P. Shantha and Ors , the apex court
has put an end to this controversy and has held that patients aggrieved
by any deficiency in treatment, from both private clinics and
Government hospitals, are entitled to seek damages under the Consumer
Protection Act, 1986. A few important principles laid down in this case
include:
would not exclude the service rendered by them from the ambit of C.P.
Act.
Conclusion
After a detailed analysis of the case Indian Medical Association v. V.P
Shanth we can say that This case gave effect to consumers who were
suffering from medical negligence and including medical services in the
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ambit of Consumer Protection Act, 1986 enabled consumer to get more
speedy and cheap justice. As this is the main aim of the Act. This case
also differentiated contract for service and contract of service, in respect
of medical practice and profession. System of liability which it
established is not appropriate in case where patients are not treated as
consumer even in government hospital availing services free of charge.
It is question of common conscience and equity as person who are
availing services in government hospital are not economically sound
that is why they are availing services in government hospital. It is point
of reconsideration. Hospital rendering services free of charge are
outside the purview of the Consumer Protection Act, 1986. As some
charitable trust do not have profit motive they can be sued in either civil
case but not in Consumer court.
REFERENCES
1. Statutes
2. Books
WHV Rogers,Winfield and Jolowicz on Tort, Sweet & Maxwell, International Student
Edition, 1998 .
Laxminath and M Sridhar, Ramaswamy Iyer‟s The Law of Torts, LexisNexis Butterworths,
Ninth Edn, 2003
3. Websites
http://legalservicesindia.com
http://medicolegalhelpline.blogspot.in
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