INDIAN MEDICAL ASSOCIATION versus V.P. SHANTHA AND ORS.

Citation: [1995] SUPP. 5 S.C.R. 110 · Decided: 13-11-1995 · Supreme Court of India · Bench: KULDIP SINGH, S.C. AGRAWAL, B.L. HANSARIA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
INDIAN MEDICAL ASSOCIATION 
v. 
V.P. SHANTHA AND ORS. 
NOVEMBER 13, 1995 . 
B 
[KULDIP SINGH, S.C. AGRAWAL AND B.L. HANSARIA, JJ.] 
Consumer Protection Act. 1986. 
Ss. 2(1)(o), (c), (d), (g) and 14-Scope of 'Service' in the light of the 
C definition 'consumer' and other relevant provisions of the Act-Remedy 
against malpractice or negligence by Medical Practitioners, hospitals and 
nursing homes in the process of consultation, diagnosis and treatment-Where 
such medical se1vices are rendered free of charge to everybody availing the 
se1vices they do not fall under the definition 'se1vice'-'--But where charges are 
required to be paid by eve1ybody or payable by those who could afford and 
D not by those who could not such medical se1vice rendered would constitute 
'Se1vice'-Payment of token amount for registration purposes cannot be 
treated as charges-Payment of charges by insurance company or employer 
for medical services rendered to insured/employee, such se1vices would still 
fall under 'se1vice' "contract of service'~ "Contract for service''-Difference. 
E between-Se1vices rendered by medical practitioners or hospitals or nursing 
homes-Deficiency in-To be judged by applying the test of reasonable skill 
and care as applicable in action for damages for negligence. 
F 
Sections 3 and 13-Procedure followed by the Redressal 
Fomm--Speedy disposal of complaints-Complicated issues requiling record-
ing of evidence of experts-Complainant can be directed to approach Civil 
Court. 
Sections 3, JO, 13, 16 and 2o--Redressal Fomm-Associating non-legal 
persons having knowledge in other fields connected with the object of the 
G Act-Decision on the basis of maj01ity view-Technical matters arising in 
complaint regarding deficiency in se1vice-Such members need not be experts 
in the subject. 
T01ts: 
H 
Negligence or malp1:actice by Medical Practitioners-Liable for 
110 
INDIAN MEDICAL ASSN. v. V.P.SHANTIIA 
111 
damages-Can be sued in contract-Failure to take reasonable skill and A 
care-Not immune from liability on the ground that they are subject to 
disciplinary control under Medical Council Act. 
Constitution of India, 1950 : 
Article 265-T~haracteristics of-Expenses of 1wming a govem-
B 
ment hospital met from Consolidated Fund which is raised from taxes paid 
by tax payers-'Free of charge' medical services rendere·d by the hospital to 
such tax payers-Held, cannot be treated as paid services. 
Words & Phrases : "Service'~ "Preferential users'~ "made available'~ C 
"avails of' "Hires" Meaning of-In the context of Consumer Protection Act, 
1986. 
Divergent views had been expressed on the question whether a 
medical practitioner can be regarded as rendering 'service' under Section 
2(i)(o) of the Consumer Protection Act, 1986, and whether the service D 
rendered at the hospital/nursing home can be regarded as 'service' under 
the said provision. In Writ Petitions filed under Article 226 of the Con-
stitution, the Madras High Court had held that services rendered to a 
patient by a medical practitioner or by a hospital by way of diagnosis and 
treatment, both medicinal and surgical, would not come within the defini-
tion of 'service' under Section 2(1)(o) of the Act and a patient who 
undergoes treatment under a medical practitioner or in a hospital by way 
of diagnosis and treatment, both medicinal and surgical, cannot be con-
sidered to be a 'consumer' within the meaning of Section 2(1)(d) of the Act 
but para-medical services rendered by them would be within the definition 
E 
of 'service' and a person availing of such service would be a 'consumer'. 
F 
In proceedings arising out of complaints filed under the Act the 
National Consumer Disputes Redressal Commission on the other hand, 
had held that the activity of providing medical assistance for payment 
carried on by the hospitals and members of the medical profession falls 
within the expression of 'service' and in the event of any deficiency in the G 
performance of such service, the aggrieved party can invoke the remedies 
provided under the Act by filing a complaint before the Consumer Forum 
having jurisdiction. The National Commission had also held that the legal 
representatives of the deceased patients who were undergoing treatment 
in the hospital are consumers under the Act and are competent to main-
H 
112 
SUPREME COURT REPORTS (1995] SUPP. 5 S.C.R. 
A 
tain the complaint. The National Commission was, however, of the view 
that if the treatment given 

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