Dear Medicos, what's there in New Consumer Protection Act ? as you are not out of it.. Adv. ROHiT ERANDE. ©

Dear Medicos, what's there in New Consumer Protection Act ? as you are not out of it..

 Adv. ROHiT ERANDE. ©

I may not be wrong to say that perhaps the Doctors are not  scared of anything than The Consumer Protection Act or CPA. Medicos often refer it to the draconian legislation. Its been more than 3 decades that the Doctors and the Hospitals have been brought under the 4 corners of this Law.

The New, Consumer Protection Act, 2019 (CPA) has been put into effect from 20th July, 2020, barring few sections. The old Consumer Protection Act, 1986 has been now repealed. 

Let's see the salient features of this Act, from Doctor's point of view. 

We all are aware that the CPA is a social legislation and its main aim and object reads as under 

"An Act to provide for the better protection of the Interest 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".

A) Why Doctors are still governed under new CPA :

The CPA was first introduced in the year 1986 as a Social Legislation and to protect the interest of Consumers.  The Definition of term 'Services' under old Act, (Sec.2(O)) and under new Act Sec. 2(42) is one and the same and it is read as under :

Sec. 2(o)   "service" means service of any description which is made available to potential users and includes, but not limited to, 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 the 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;

"Deficiency" Sec. 2(11) : This Definition also brings Medicos within the canopy of CPA. The Part (i) of this section reads as under :
' any act of negligence or commission by such person which causes loss and injury to consumer'..  

If you see the definition there was no direct  mention of Healthcare Services in the above definition. Thus the Medical Negligence cases for damages were tried in the civil Court only.  

But then came the famous (for medicos infamous) judgement of Hon. Supreme Court (3 judges Bench) in the case of Indian Medical Association V/s. V.P. Shantha - AIR 1996 SC 550 -( https://indiankanoon.org/doc/723973/) that brought Healthcare Services within the wide canopy of CPA. If we see the definition, the words "but not limited to" are wide enough to bring in any and every services under the realm of CPA.  The Court also held when Free of Cost services also come within the realm of CPA. 

The detailed discussion on this point is covered in following blog.

https://advrohiterande.blogspot.com/2019/08/exclusion-from-consumer-protection-act.html

Hon. Supreme Court also confirmed this legal position :

A bench of Hon. Justices DY Chandrachud and Hima Kohli affirmed the Bombay High Court verdict which held that doctors and healthcare service providers are covered under the ambit of the Consumer Protection Act (Rs.50,000/- saddled upon the Petitioner by BHC) and Apex Court held that  held that the Petition filed by NGO “Medicos Legal Action Group” as a “motivated PIL”. The Apex Court observed that the definition  “services of any description” is wide enough and had the Parliament wanted to exclude it, then it would have said expressly. The Court said that the Doctor committed the Self Goal and Petitioner relied upon Ramvilas Paswan's Speech in the Parliment ,but the Court said  the Minister's speech in the house cannot restrict what is expressly stated in the statute.

 B) Jurisdictional Changes :

i) The Pecuniary Jurisdiction of District, State and National Forums have been increased and the Doctors are scared of this amendment.
Initially, as per the new amendment  the  Jurisdiction of District Forum was increased from 20 lakhs upto Rs.1 Crore. The State forum Jurisdiction was  increased to Rs.10 Crores and above Rs.10 Crore, for  National Forum. 

However, later on it again got amended as under :

a. District Forum - Where value of Services paid or Goods as consideration provided is upto Rs.50 lakhs.

b. State forum - above 50 lakhs to Rs. 2 Crore

c. National Forum - Above Rs. 2 Crore.

This is the provision which Doctors, in my humble opinion, are unnecessarily stretching to their detriment.

Please Don't succumb to Fake news on Social Media  :
In these days, people easily believe upon anything and everything that is circulated on Social media and Hon. Supreme Court has also expressed its concern over spread of fake news, that caused lives of migrant workers. 
The point here is increase in Pecuniary Jurisdiction  does not mean that Doctors will be liable to pay that much compensation. There are some misleading messages have become viral on Social media. Previously also any claims above Rs. 1 crore without any limits were filed in National Commission. 
Please always remember that increasing or changing the pecuniary Jurisdiction is the common thing under Law. In Civil matters also the jurisdiction is changed from time to time. 

Merely filling of a complaint does not mean that the Compliant will always be decided in favour of the Complainant. Therefore do not get panic and think for higher premium insurance policies. The Courts do not award the compensation as prayed for, they have to  follow certain criteria. 

In absence of this amendment  also, a compliant had right to claim e.g. Rs. 100 crore compensation. Take the Instance of Dr. Kunal Saha case. Total Compensation was claimed Rs.100 crore +, but the Courts granted Rs.11 Crs, considering the facts of that case. This is the case where perhaps the highest compensation  has been granted till date. 

 In majority, all the complaints will be filed in District Forum. There were many cases where just to confirm jurisdiction on Higher Forum, the complaints were filed with inflated claims and same were dismissed too.

ii) Territorial Jurisdiction :

The Law is clear since beginning that any compliant, subject to pecuniary jurisdiction, can be filed where the  the Opponent ordinary resides or carries on business or where the cause of action has arisen partly or in whole. However now the Compliant can be filed where the Consumer resides, which was not earlier possible. This provision may be of little concern for Doctors. As suppose e.g. a patient from Jaipur comes to Pune for Treatment and if the patient wants to file a compliant he, can now file it at Jaipur also. 

C) Appeal and Review :

i) If you want to file an Appeal, first deposit 50% of the amount awarded :

In Civil Courts also, if the aggrieved party wants to file an appeal, he/she has to deposit certain amount so that trail court judgment /order can be stayed. Likewise, this new provision has been introduced. Under this new provision (Sec.51), if the aggrieved party wants to approach higher forum, then the 50% of the amount awarded by the forum has to be deposited in higher forum, then only Appeal can be filed. This provision is applicable right upto filing of an appeal against order of National Commission in  Hon. Apex Court

ii)The time limit to file appeal has been increased from 30 days to 45 days, with power to Condon delay. 

iii) The Second Appeal to National Commission can be filed only if there is substantial question of Law involved.  Power of revision of State and National Commission has been retained. But most importantly, power to 'review' has been conferred to District, State and National Commission. The law of "review" has been settled in civil matters. Only when there is an error apparent on the face of record, review petitions are entertained. Review means recalling the order passed by the same judge !. 

D) Qualification of Judges /Members :
The New Act provides that Central Government to prescribe for qualification, term of appointment, method of requirement etc. In earlier Act, there was direct mention of qualification of members of the Forum. There should be only judicial members appointed. For District Commission, atleast District Judges should be appointed. 
For deciding Medico-legal cases, it has been the long lasting demand of Doctors that it should be referred to an expert committee. The Following judgments of Hon. Apex Court covers the topic on this point. 

In Martin F Dsouza V/s. Mohd. ishfaq, (AIR 2009 SC 2049)  the Hon. Apex Court held that an Expert opinion is must before filing the Medical Negligence and observed that :

"The courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists." 

However this view was not accepted by the later judgment of Supreme Court in the case of V.Krishna Rao V/s. Nikhil Superspeciality Hospital(2010) 5 SCC 513.  It was observed therein that “In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion”

This is the area where Doctor Associations should demand for mandatory medical expert report. 

E) False and Misleading advertisement : 
This section has not been put into effect (Sec.89). This section provides that whoever makes such false/misleading advertisement shall be liable for fine which may extend to Rs.10 lakhs and imprisonment that may extend to 2 years, for the first offence and for subsequent offences, the fine may increase to Rs.50 lakhs and the imprisonment may extend to 5 years. Let's hope this Section shall come into effect soon.

F) Unfair Trade Practice : This Definition Sec.2(47) is wide enough to include unfair methods and unfair or deceptive practice.   e.g. Falsely representing that the services are  of a particular standard, quality or grade (It may hamper the assurances given by some of the Doctors regarding successful result of treatment like Hair growth, IVF, Weight reduction etc. )  or  Non issuance of receipt of money received amounts to unfair trade practice.

G)  Product Liability :  By this provision, if any harm is caused to the Consumer by any defective product, compensation can be claimed by the Consumer, subject to certain exceptions. Chapter VI deals with this topic extensively. 

H) Steps towards e-filing - The provisions for e-filing of complaints  /appeals have been made. The State Govt. has to make rules in this regard. 

I) The Mediation or Alternate Disputes redressal  mechanism is introduced. In simple words it allows you to amicably settle the dispute. Most important, it is never compulsory to settle the matter in mediation. It's completely optional to either of the party.

J) The  New Act provides  for the establishment of an executive agency to be known as the Central Consumer Protection Authority (CCPA) to promote, protect and enforce the rights of consumers; make interventions when necessary to prevent consumer detriment arising from unfair trade practices and to initiate class action including enforcing recall, refund and return of products, etc. This fills an institutional void in the regulatory regime extant. 

K) Execution of orders :
The Act provides that orders passed by all the forums can be executed as if it were a Decree of a Civil Court in a suit, as per provisions of Order 21 of CPC. The person who fails to comply with the orders is liable to be punished with fine and/or imprisonment. 

Always remember that one cannot stop any one from approaching the Court, it is the constitutional right available to the citizen. However burden lies on the Complainant him/her to prove his/her case.

L) What Doctors should really ask for ?

Do not get panic by the new Act. Like any other Act, this new Act will also be tried  and tested by the Commissions and lastly by the Hon. Apex Court.  Mere increase in pecuniary jurisdiction does not mean Courts will also start allowing the Complaints to that effect. Practically, the Doctors should ask for the insertion provision of compensation for filing of frivolous cases. That may deter the filing of frivolous complaints. Even otherwise under general law, Doctors may sue for the compensation for the malicious prosecution, but hardly any Doctor does so. 

The Doctors may also ask for Mandatory Expert opinion while deciding the medico-legal cases, since the judges may not have the requisite knowledge.

The New Act,  in my humble opinion, if challenged in Hon. Apex Court, will not be of any use. Thus we have to accept it and do our job sincerely and honestly like we always do. Mere venting emotions of social media or getting  carried away by the 'viral messages' is of no use. 

On a lighter note, if you want the protection of CPA, then be a Consumer. A Doctor can also be a consumer but not always the vice versa 😊😊

Thanks and Regards,

Adv. Rohit Erande.

Pune. ©