CONSUMER PROTECTION ACT

1. CONSUMER PROTECTION ACT Dr. Don Gregory Junior Resident Dept of Chest & TB

2. Introduction •  The Consumer Protection Act, 1986 is a benevolent social legislation that lays down the rights of the consumers and provides their for promotion and protection of the rights of the consumers. The first and the only Act of its kind in India, it has enabled ordinary consumers to secure less expensive and often speedy redressal of their grievances. By spelling out the rights and remedies of the consumers in a market so far dominated by organized manufacturers and traders of goods and providers of various types of services, the Act makes the dictum,caveat emptor (‘buyer beware’) a thing of the past. •  The Act mandates establishment of Consumer Protection Councils at the Centre as well as in each State and District, with a view to promoting consumer awareness.

3.  The Central Council is headed by Minister, In-charge of the Department of Consumer Affairs in the Central Government and the State Councils by the Minister In-charge of the Consumer Affairs in the State Governments. It also provides for a 3-tier structure of the National and State Commissions and District Forums for speedy resolution of consumer disputes. • To provide inexpensive, speedy and summary redressal of consumer disputes, quasi-judicial bodies have been set up in each District and State and at the National level, called the District Forums, the State Consumer Disputes Redressal Commissions and the National Consumer Disputes Redressal Commission respectively.   • At present, there are 629 District Forums and 34 State Commissions with the National Consumer Disputes Redressal Commission (NCDRC) at the apex.

4. Each District Forum is headed by a person who is or has been or is eligible to be appointed as a District Judge and each State Commission is headed by a person who is or has been a Judge of High Court. •  The National Commission was constituted in the year 1988.  It is headed by a sitting or retired Judge of the Supreme Court of India. V. BalakrishnaEradiwas the First President of NCDRC.  The National Commission is presently headed by Hon’ble Mr. Justice Ashok Bhan, former Judge of the Supreme Court of India as President and has ten Members •  The provisions of this Act cover ‘goods’ as well as ‘services’.  The goods are those which are manufactured or produced and sold to consumers through wholesalers and retailers.  The services are in the nature of transport, telephone, electricity, housing, banking, insurance, medical treatment, etc. 

5.  A written complaint, can be filed before the District Consumer Forum for pecuniary value of upto Rupees twenty lakh, State Commission for value upto Rupees one crore and the National Commission for value above Rupees one crore, in respect of defects in goods and or deficiency in service.  • The remedy under the Consumer Protection Act is an alternative in addition to that already available to the aggrieved persons/consumers by way of civil suit. In the complaint/appeal/petition submitted under the Act, a consumer is not required to pay any court fees but only a nominal fee.  •  Consumer Fora proceedings are summary in nature. The endeavor is made to grant relief to the aggrieved consumer as quickly as in the quickest possible, keeping in mind the provisions of the Act which lay down time schedule for disposal of cases

6. If a consumer is not satisfied by the decision of a District Forum, he can appeal to the State Commission. Against the order of the State Commission ,a consumer can appeal to the National Commission and appeal to the Supreme court against national commission, all being within 30 days of the order.   • In order to help achieve the objects of the Consumer Protection Act, the National Commission has also been conferred with the powers of administrative control over all the State Commissions by calling for periodical returns regarding the institution, disposal and pendency of cases. • Functioning of District Forum, State Commission and National Commission is consumer friendly, and thus a consumer can file a complaint and also address arguments in person. 

7. The National Commission is empowered to issue instructions regarding (1) adoption of uniform procedure in the hearing of the matters (2) prior service of copies of documents produced by one party to the opposite parties (3) speedy grant of copies of documents, and (4) generally over-seeing the functioning of the State Commissions and the District Forums to ensure that the objects and purposes of the Act are best served, without interfering with their quasi-judicial freedom. •  The Registry of the National Commission is at INA, New Delhi • It remains open on all working days. • The filing timings are from 10.00 a.m. to 4.30 p.m.  • Every matter filed with the Registry is listed on the 7th day of its filing for admission before the National Commission.  • In genuine cases where the complainant/ appellant/ petitioner before the National Commission is unable to engage the services of an advocate, legal aid is provided by the Commission free of charge.

8. DEFINITIONS 1)Complainant • (i) a consumer • (ii) any voluntary consumer association registered under the Companies Act,1956 • (iii) the Central Government or any State Government • (iv) one or more consumers, where there are numerous consumers having the same interest • (v) in case of death of a consumer, his legal heir or representative

9. 2)Complaint :any allegation that includes • An unfair trade practice • Restrictive trade practice (manipulation of price or conditions/delay) • Defective goods • Deficiency of services • Trader or the service provider has charged for the goods or for the services mentioned in the complaint, a price in excess of the price- Fixed by or under any law for the time being in force /displayed on the goods or any package containing such goods/displayed on the price list exhibited by him by or under any law for the time being in Force/agreed between the parties • Goods which will be hazardous to life and safety when used

10. 3)Consumer: any person who • Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment • Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment • Does not include a person who obtains such goods for resale or for any commercial purpose 4)Person: includes • (i) a firm whether registered or not • (ii) a Hindu undivided family • (iii) a co-operative society • (iv) every other association of persons whether registered under the Societies Registration Act, 1860 or not

11. 5)Defect : • Any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force • Under any contract, express or implied or] as is claimed by the trader in any manner whatsoever in relation to any goods 6)Deficiency: Any fault, imperfection, shortcoming 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

12. 7)Service :means • Service 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, entertainment, amusement or the purveying of news or other information • Does not include the rendering of any service free of charge or under a contract of personal service • Medical services are covered under the definition of "service". Service includes rendering of consultation, diagnosis and treatment, both medical and surgical NOTE: CPA is amended in 1991, 1993 and 2002

13. CPA has been made applicable to “all goods and services” .Two types of services have categorically been kept out of the purview of this Act. These are: • Services rendered free of charge;and • Services rendered under a contract of personal service. • "Contract of personal service" has to be distinguished from a "contract for personal service“. • Wherever, there is relationship like that of master and servant it is a "contract of personal service" and is excluded from the purview of the Act • In the absence of relationship of master and servant between the patient and the medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a contract of personal service. It is "contract for personal services".

14. RIGHTS OF A CONSUMER • The right to be protected against the marketing of goods and services which are hazardous to life and property; • The right to be informed about the quality, quantity, potency, purity, standard and price of goods so as to protect the consumer against, unfair trade practices; • The right to be 'assured, wherever possible, access to a variety of goods and Services at competitive prices; • The right to be heard and to be assured that consumer's interests will receive due consideration at appropriate Fora; • The right to seek redressal against unfair trade practices 3[or restrictive trade practices or unscrupulous exploitation of consumers; and • The right to consumer education

15. Who can file a complaint? 1. An individual consumer 2. Recognized consumer bodies 3. A group of consumers with same interest 4.Central or State Governments. Who cannot file a complaint? 1.Complaint by an individual on behalf of general public 2.An unregistered association cannot file a complaint 3.After expiry of limitation period Time limit to file a complaint? Within two years from the date on which the cause of action has arisen

16. Filing a case

17. CONSUMER COMPLAINT The Consumer Complaint along with all the copies should be paginated and duly indexed in the following seriatim:- 1.   Index 2.   List of Dates 3.   Memo of Parties (with fresh complete addresses) 4.   Complaint with Notarised  attested affidavit 5.   Supporting documents in favour of complaint e.g. receipt, voucher etc. (All the Annexures must be attested as True Copy on the last page with name & signature) 6.   Application for condonation of delay with Notarised attested affidavit, if beyond limitation. (2 years from cause of action) 7.   Fee for making Consumer Complaint (In the form of Demand Draft) Note: CPA extends to the whole of India except the State of Jammu and Kashmir.

19. Some Implications of the Act • Persons buying goods either for re-sale or for use in large scale profit making activity will not be `consumers’ • The insurance company is not a consumer. • A lottery ticket holder is not "consumer“ • Applicant who merely applies for allotment of shares is not a consumer • If somebody does not perform his part of the contract, it amount to deficiency in service • Undue delay in declaration of examination result is obviously deficiency in service • The student is a consumer of service of educational institute

20. When the case is not a simple case of deficiency in service and involves determination of complex questions of facts and law, which cannot be satisfactorily determined by the redressal agency .In the time frame provided under the Rules, it would be better for the complainant to seek redressal of his grievances in a Civil Court • If "fraud" is alleged, it is desirable that the complainant should be directed to Civil Court as investigation about such fraud is required to be done • The party to be awarded compensation has not only to show deficiency in service but also the negligence of the other party and without the finding of negligence there cannot be any award

21. RELIEF THAT MAY BE AWARDED BY CONSUMER FORUM Award compensation for loss or injury suffered due to negligence; and/or order opponent to • Remove deficiency in service • Discontinue the unfair trade practice • Pay sum towards loss or injury suffered by large number of people • Provide for adequate cost to parties

22. CPA For Professionals • CPA is not in derogation of any other law. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. • All professionals — Advocates, Architects, Chartered Accountants, Doctors, Engineers, Interior Decorators and others are covered under the Consumer Protection Act, 1986. All the professionals are licenced and covered under respective laws of the land. So it does not mean that professionals are not liable for due compensation under the Consumer Protection Act for their ‘negligence’ and ‘deficiency’ in service. • A person who receives medical treatment in a Government hospital is not a consumer under the Act; Consumer Unity & Trust Society v. State of Rajasthan, (1991) I CPR 241. • However, the State Commission of Orissa held that a patient is a Consumer being the beneficiary of services in as much as the State Government is paying the consideration amount in the form of salary to the doctors aI)d hospital staff; Smt. SukantiBehera v. Dr. SashiBhusanRath, II (1993) CPJ 633.

23. MEDICAL NEGLIGENCE AND CONSUMER PROTECTION LAW • Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. • For medical negligence of any kind to be proved it must be shown that:1) The defendant (doctor) owed a duty of care to the plaintiff.2)That the defendant was in breach of that duty.3)That the plaintiff suffered damage as a result which can be measured and compensated for in terms of money.

24. No doctor is expected to possess all current medical knowledge or being able to apply all known diagnostic or therapeutic techniques but a doctor of a particular standing as regards to his degree and experience is expected to have a standard of knowledge and capability commensurate with his status. • Medical Negligence can only occur when a doctor-patient relationship is established. A doctor is not negligent if he does not offer his services in an emergency to a person. • Burden of proof lies with the complainant. He has to provide Higher standard of evidence to support an allegation of negligence against a doctor & establish his claim.

25. Some acts that amounts to medical negligence • Failure to attend the patient • Not attending complicated delivery • Not revealing HIV positive status • Unfitting dentures • Injections/ drugs wrongly given • Foreign body in the abdomen • Failed tubectomy operation • Perforation of uterus • Contaminated blood transfusion • Res ipsaloquitour

26. WHAT THE LAW SAYS????? • Any professional does not assure his client of the result. The only assurance which he can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. • Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence /care in the given case.

27. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure.

28. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. • Even in civil jurisdiction, the rule of res ipsaloquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. • Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsaloquitur.

29. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. • If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason - whether attributable to himself or not, neither a surgeon can successfully wield his life-saving scalper to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine

30. Discretion being better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society. • The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future.

31. Some Interesting Cases 1)Indian Medical Association v. V.P. Shantha and Ors. (1995) 6 SCC 651 • Athree-Judge Bench decision. • The principal issue which arose for decision by the Court was whether a medical practitioner renders 'service' and can be proceeded against for 'deficiency in service' before a forum under the CPA. • The Court dealt with how a 'profession' differs from an 'occupation' especially in the context of performance of duties and hence the occurrence of negligence. • The Court noticed that medical professionals do not enjoy any immunity from being sued in contract or tort (i.e. in civil jurisdiction) on the ground of negligence.

32. 2)PoonamVerma v. Ashwin Patel and Ors., (1996) 4 SCC 332 • A doctor registered as medical practitioner and entitled to practice in Homoeopathy only, prescribed an allopathic medicine to the patient. The patient died. • The doctor was held to be negligent and liable to compensate the wife of the deceased for the death of her husband on the ground that the doctor who was entitled to practice in homoeopathy only, was under a statutory duty not to enter the field of any other system of medicine and since he trespassed into a prohibited field and prescribed the allopathic medicine to the patient causing the death, his conduct amounted to negligence per se actionable in civil law.

33. 3) Bolamvs. Frienhospital management committee (1957) • Mr. Bolam was advised ECT for mental illness.Hewas however, not warned of the risks of fractures involved in the treatment. • There were two bodies of opinion. One preferred the use of relaxant drugs. Using relaxants, the patient sustained dislocation of both hip joints with fracture of pelvis. • The supreme court held that the doctor was not negligent because he acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that art. • The ‘Bolam’ principle implies that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper in diagnosis and treatment but also to advice and warning by a “responsible body” of medical opinion even though other doctors adopt a different practice. • A doctor is not liable for taking one choice out of two for favouring one line of treatment rather than another.

34. 4)TarunKumar Pramanik vs. Dr. KunalChakraborty& Ors, 1995(2) CPR 545(WE SCDRC) • The complainant alleged that during operation for left inguinal hernia his left testis was removed negligently and without consent. On account of this suffered and has become handicapped. • The State Commission on the basis of evidence placed on record, and opinion of expert witness held that the removal of testis was done of expert witness held that the removal of testis was done to avoid gangrenous infection, operation was done with reasonable care and skill and had not resulted in any handicap. • Complainant was held to be vexatious and complainant liable to pay cost of 1st opposite party.

35. 5)P. Sudhakar Vs. GowriGopal Hospital, 2004(1) CPJ 329 (AP SCDRC) • Surgery was done for acute appendicitis. • During the post operative period, the patient expired after administration of wrong drug” Fancuran Bromide ,2ml ,mistaking it for analgesic. • As compensation Rs. 2 lac was awarded along with Rs.10,000 as costs for OP-hospital. • Doctor and nurse were held jointly liable.

36. 6)JasbirKaur v State of Punjab, AIR 1995 P&H 278 • In Shri Guru TegBahadur Hospital, Amritsar ,newly born baby was missing from the bed • Later on the child was found in profusely bleeding condition and with one eye totally gouged out with the eyeball, near the wash basin of the bathroom. • Hospital authorities contended the mischief of cat which caused damage. • Defendants were held liable. • Compensation was awarded to petitioners to the extent of rupees one lakhfor negligence, callousness and carelessness of the respondents.

37. 7)In Md. Aslam v/s Ideal Nursing Home and Ors., 1986-99 Consumer 4233 (NS) National Commission held as follows: ‘Death of a patient due to infection after operation and Medical Negligence was alleged. No negligence on the part of the Nursing Home or the Doctors attending the patient-patient did not follow the advice given to her-appeal dismissed’ 8)In NarasimhaReddy & Ors. v. Rohini Hospital & Anr. I(2006) CPJ144(NC),National Commission held that where a patient could not be operated due to critical condition, doctor can not be held guilty of negligence if proper course of practice is adopted and reasonable care is taken in administration of treatment. Consequently the Revision petition filed by Complainant was dismissed .

38. 9)In NihalKaur v/s Director, P.G.I.M.S.R. III (1996) CPJ 112 where a patient died a day after surgery and the relatives found a pair of scissors utilized by the surgeon while collecting the last remains, a compensation of Rs. 1.20 lakhs was awarded by the State Commission, Chandigarh on the grounds that negligence was writ large on record in handling the case though it was argued that arterial forceps and sponges were left behind in an attempt to save the life of the patient and (the said things were to be later removed, but could not be done as the patient died) the same did not contribute to patient’s death.

39. 10)In the case Mrs. ShantabenMuljibhai Patel & Ors. v. Breach Candy Hospital and Research Centre & Ors. I(2005) CPJ 10 (NC),National Commission held that doctors are required to take risk while performing their job and merely because a patient dies to certain accidental eventualities does not establish deficiency in service or negligence on the part of a doctor or a hospital.

40. How to avoid litigations? • 1. Personal level • 2. Practice level. • 3. Professional indemnity • 4. Support groups • 5. Defences A. Technical. B. Factual.

41. Personal level • A doctor should have M.C.I. approved qualification, • Training and experience of recognized centres. • The prescription heads, signboards and advertisements should mention the actual facilities available for diagnosis and treatment. • The doctor should have a sympathetic attitude towards patients and answer all queries without losing temper. • He should refrain from claims of guarantee of results. • He should keep himself updated of the latest development by attending CME’s, workshops and academic sessions.

42. Practice level • Exercising reasonable medical, social and legal skill and care in diagnosis and treatment, • Proper documentation of facts and legally valid informed consent. • This can be done by making good clinical notes of findings on examination and treatment given. • Where there is failure to follow instruction, refusal for any investigation and failure to come for review on specified date should always be recorded in underlined way. • These negative records act as important tool while defending our cases in court of law.

43. Professional indemnity • Indemnity by the insurance companies gives a sense of mental security to the doctor/hospital and if any medical negligence is proved ,the company takes care of it. Support groups • By forming societies like the Indian Medical Association, Medical college teachers Welfare Society, doctors not only get a type of social security but regular fellowship will prohibit the doctors speaking foul against their own colleague. • Such forums can be used from time to time for discussion of various provisions of acts, cases fought and their results and the lessons to be learned from them.

44. DEFENCES • Doctors/Hospitals should always make all possible points in defence in first instance of making a reply to the complainant. • Technical Defences • Concurrent adjudication in another court. • The court does not have pecuniary/territorial jurisdiction. • Complaint is time-barred. • Complicate issues involved, required recording of evidence of experts, hence case should relegated to a civil court. Such a plea must be taken at the beginning of the trial. • The complaints frivolous and vexations and liable to be dismissed under section 26 of the Act and may be fined upto Rs 10000 • Inform your insurance company in writing with a copy of the complaint.

45. B. Factual defences • Mention your qualifications, training,experience, expertise etc. Support with relevant documents. 2.Mention hospitals infrastructure facilities,special facilities, back-up support, it with documents. 3. Complainant has not come to the court with clean hands i.e. he has suppressed material facts, e.g. previous illness, treatment etc. 4. Inconsistence between notices sent directly or through consumer groups and the complaint made in the court. 5. Written evidence of consent of the patient/ relative/attendant to assumption of inherent and special risks in the treatment.

46. 6. Circumstances of the case; viz. There was emergency, lack of facilities (e.g. rural area) no one to give history of patient’s illness etc. 7. Burden of proof of: (i) duty of care; (ii)breach of that duty; (iii) causation; (iv)damage, etc. Is on the complainant. 8. Reasonable knowledge, skill and care exercised (Rely/quote standard text books with attested photocopies). 9. Consolation/treatment by patient from other doctor/other systems of medicine simultaneously. 10. Many other reasons/more than one reason/for occurrence of damage. 11. Contributory negligence

47. TO CONCLUDE…. • After the consumer protection act has included the medical professional in its ambit, it has proved to be double-edged sword for a doctor. • Only proper and ethical judgement , precautions and proper documentation of all facts of the patient details, diagnostic tests and treatment given and informed consent from the patient or his guardian can save a doctor against any litigation. • The relationship between Doctor/Hospital and Patients is a relationship of trust; doctors are still known as healers!There is no real alternative!!Let not commercialization destroy the edifice of medical practice!!!