CORAM:

KULDIP SINGH , S.C. AGARWAL AND B.L. HANSARIA, JJ.

1. Consumer Protection- Consumer Protection Act, 1986- SECTION 2 (1) (o)- "service" -Medical Profession- Whether Medical Practitioners and hospitals/nursing homes can be regarded as rendering a "service" as contemplated by Section 2 (1)(o) of the Act- Disposing the appeals, Held,
   1. In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties (Para 23)
   2. Medical practitioners do not enjoy any immunity and they can be sued in contract or tort on the ground that they have failed to exercise reasonable skill and care. The fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of Medical Council of India and/or State Medical Councils is no solace to the person who has suffered due to their negligence and the right of such person to seek redress is not affected (Paras 23 & 24)
   3. It is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner, but this would not be so in all complaints about deficiency in rendering services by a medical practitioner. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the civil court for appropriate relief (Para 38).
   4. Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service) by way of consultation, diagnosis and treatment, both medical and surgical, would fall within the ambit of 'service' as defined in Section 2 (1) (o) of the Act. (Para 56).
   5. A 'contract of personal service' has to be distinguished from a 'contract for personal services'. In the absence of a 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 under a 'contract of personal service'. Such service is service rendered under a 'contract for personal services' and is not covered by exclusionary clause of the definition of 'service' contained in the Act. (Para 56).
   6. The expression 'contract of personal service' would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under a contract of employment would be outside the purview of 'service' (Para 56).
   7. Service rendered free of charge by a medical practitioner attached to a hospital/nursing home or a medical officer employed in a hospital/nursing home where such services are rendered free of charge to everybody would not be 'service'. The payment of a token amount for registration purposes only at the hospital/nursing home would not alter the position (Para 56).
   8. Service rendered at a non-Government hospital/nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service is outside the purview of the expression 'service'. (Para 56).
   9. Service rendered at a non-Government hospital/ nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression 'service'. Service rendered at a non-Government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' irrespective of the fact that the service is rendered free of charge to the persons who are not in a position to pay for such services. (Para 56).
   10. Service rendered at a Government hospital/health center/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service is outside the purview of the expression 'service'. Service rendered at a Government hospital/health center/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression 'service' irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. (Para 56).
   11. Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service'. (Para 56).
   12. Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent upon him, the services rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service'. (Para 56)

   Over ruled: Dr. C.S. Subramanian v. Kumarasamy & Anr., (1994) 1 MLJ 438.

   Referred: Dr. A.S. Chandra vs. Union of India, (1992) 1 Andhra Law Times 713; Lucknow Development Authority vs. M.K. Gupta, 1994 (1) SCC 243; Commissioner of Inland Revenue vs. Maxse, 1919 1 K.B. 647 at p. 657; Saif Ali vs. Sidney Mitchell & Co. (1980) 1 A.C. 198; Rees vs. Sinclair, (1974) 1 N.Z.L.R. 180; Gianarelli vs. Wraith, (1988) 81 A.L.R. 417; Arizona vs. Maricopa County Medical Society, 457 US 332=73 L.Ed.(2d) 48; Bolam vs. Friern Hospital Management Committee, (1957) 1 WLR 582; Whitehouse vs. Jordan, 1981 (1) WLR 246; Maynard vs. West Midlands, Regional Health Authority, 1984 (1) WLR 634; Sidaway vs. Governors of Bethlehem Royal Hospital, 1985 A.C. 871; Laxman Balkrishna Joshi vs. Trimbak Bapu Godbole & Anr. 1969 (1) SCR 206; Chinkeow vs. Government of Malaysia, (1967) 1 WLR 813 P.C.; Dharangadhra Chemical Works Ltd. vs. State of Saurashtra, 1957 SCR 152 at p. 157; Simmons vs. Heath Laundry Co., (1910) 1 K.B. 543; Whitehouse vs. Jordan & Anr., (1980) 1 All. E.R. 650.

   S.C. Agrawal, J.- Leave granted in SLP(C) Nos. 18497/93 and 21755/94. Delay condoned and leave granted in SLP(C) Nos. 18445-73/94.

2. These appeals, special leave petitions and Writ Petitions raise a common question, viz. whether and, if so, in what circumstances, a medical practitioner can be regarded as rendering 'service' under Section 2 (1)(o) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act'). Connected with this question is the question whether the service rendered at a hospital/nursing home can be regarded as 'service' under Section 2 (1)(o) of the Act. These questions have been considered by various High Courts as well as by National Consumer Disputes Redressal Commission (hereinafter referred to as 'the National Commission').

3. In Dr. A.S. Chandra v. Union of India, (1992) 1 Andhra Law Times 713, a Division Bench of Andhra Pradesh High Court has held that service rendered for consideration by private medical practitioners, private hospitals and nursing homes must be construed as 'service' for the purpose of Section 2 (1)(o) of the Act and the persons availing such service are 'consumers' within the meaning of Section 2 (1) (d) of the Act.

4. In Dr. C.S. Subramanian v. Kumarasamy & Anr., (1994) 1 MLJ 438, a Division Bench of the Madras High Court has, however, taken a different view. It has been held that the 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 definition of 'service' under Section 2 (1)(o) of the Act and a patient who undergoes treatment under a medical practitioner or a hospital by way of diagnosis and treatment, both medicinal and surgical, cannot be considered to be a 'consumer' within the meaning of Section 2 (1)(d) of the Act; but the medical practitioners or hospitals undertaking and providing paramedical services of all kinds and categories cannot claim similar immunity from the provisions of the Act and that they would fall, to the extent of such paramedical services rendered by them, within the definition of 'service' and a person availing of such service would be a 'consumer' within the meaning of the Act. C.A. Nos. 4664-65/94 and Civil Appeal arising out of SLP(C) Nos. 18445-73/94 filed by the Union of India are directed against the said judgment of the Madras High Court.

5. The National Commission by its judgment and order dated December 15, 1989 in First Appeal No.2 of 1989 has held that persons who avail themselves of the facility of medical treatment in Government hospitals are not "consumers" and the said facility offered in the Government hospitals cannot be regarded as service "hired" for "consideration". It has been held that the payment of direct or indirect taxes by the public does not constitute "consideration" paid for hiring the services rendered in the Government hospitals. It has also been held that contribution made by a Government employee in the Central Government Health Scheme or such other similar scheme does not make him a "consumer" within the meaning of the Act. Civil Appeal arising out of SLP(C) No. 18497/93 has been filed by Consumer Unity Trust Society, a recognized consumer association, against this judgment of the National Commission.

6. By judgment dated April 21, 1992 in First Appeal Nos. 48 and 94 of 1991, the National Commission has held that the activity of providing medical assistance for payment carried on by hospitals and members of the medical profession falls within the scope of the expression 'service' as defined in Section 2 (1)(o) of the Act and that in the event of any deficiency in the 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. It has also been 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 maintain the complaint. C.A. Nos. 688/93 and 689/93 filed by the Indian Medical Association and SLP(C) Nos. 6885 and 6950/92 filed by M/s Cosmopolitan Hospital are directed against the said judgment of the National Commission. The said judgment dated April 21, 1992 was followed by the National Commission in its judgment dated November 16, 1992 in First Appeal No. 97 of 1991 (Dr. Sr. Louie & Anr. v. Smt. Kannolil Pathumma & Anr.). SLP No. 351/93 has been filed by Josgiri Hospital and Nursing Home against the said judgment of the National Commission.

7. By judgment dated May 3, 1993 in O.P. No. 93/92, the National Commission has held that since the treatment that was given to the complainant's deceased husband in the nursing home belonging to the opposite party was totally free of any charge it did not constitute 'service' as defined under the Act and the complainant was not entitled to seek any relief under the Act. C.A. No. 254/94 has been filed by the complainant against the said judgment of the National Commission.

8. Writ petition No. 16 of 1994 has been filed under Article 32 of the Constitution by Cosmopolitan Hospital (P) Ltd. and Dr. K. Venugopalan Nair (petitioner in SLP(C) Nos. 6885 and 6950/92) wherein the said petitioners have assailed the validity of the provisions of the Act, insofar as they are held to be applicable to the medical profession, as being violative of Articles 14 and 19 (1) (g) of the Constitution.

9. Shri K. Parasaran, Shri Harish Salve, Shri A.M. Singhvi, Shri Krishnamani and Shri S. Balakrishnan have addressed the court on behalf of the medical profession and the hospitals and Shri Rajeev Dhavan has presented the case of the complainants. Before we proceed to deal with their contentions we would briefly take note of the background and the scheme of the Act.

10. On April 9, 1985, the General Assembly of the United Nations, by Consumer Protection Resolution No. 39/248, adopted the guidelines to provide framework for Governments, particularly those of developing countries, to use in elaborating and strengthening consumer protection policies and legislation. The objectives of the said guidelines include assisting countries in achieving or maintaining adequate protection for their population as consumers and encouraging high levels of ethical conduct for those engaged in the production and distribution of goods and services to the consumers. The legitimate needs which the guidelines are intended to meet include the protection of consumers from hazards to their health and safety and availability of effective consumer redress. Keeping in view the said guidelines, the Act was enacted by Parliament to provide for the 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 consumer disputes and for matters connected therewith. The Act sets up a three-tier structure for the redressal of consumer grievances. At the lowest level, i.e. the District level, is the Consumer Disputes Redressal Forum known as 'the District Forum'; at the next higher level, i.e. the State level, is the Consumer Disputes Redressal Commission known as 'the State Commission' and at the highest level is the National Commission (Section 9). The jurisdiction of these three Consumer Disputes Redressal Agencies is based on the pecuniary limit of the claim made by the complainant. An appeal lies to the State Commission against an order made by the District Forum (Section 15) and an appeal lies to the National Commission against an order made by the State Commission on a complaint filed before it or in an appeal against the order passed by the District Forum (Section 19).

    The State Commission can exercise revisional powers on grounds similar to those contained in Section 115 CPC in relation to a consumer dispute pending before or decided by a District Forum [Section 17 (b)] and the National Commission has similar revisional jurisdiction in respect of a consumer dispute pending before or decided by a State Commission [Section 21 (b)]. Further, there is a provision for appeal to this court from an order made by the National Commission on a complaint or on an appeal against the order of a State Commission (Section 23). By virtue of the definition of complainant in Section 2 (1)(c), the Act affords protection to the consumer against unfair trade practice or a restrictive trade practice adopted by any trader, defect in the goods bought or agreed to be bought by the consumer, deficiency in the service hired or availed of or agreed to be hired or availed of by the consumer, charging by a trader price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods and offering for sale to the public goods which will be hazardous to the life and safety when used, in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods.

    The expression "complainant", as defined in Section 2 (1)(b), is comprehensive to enable the consumer as well as any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force, or the Central Government or any State Government or one or more consumers where there are numerous consumers having the same interest, to file a complaint before the appropriate Consumer Disputes Redressal Agency and the consumer dispute raised in such complaint is settled by the said agency in accordance with the procedure laid down in Section 13 of the Act which prescribes that the District Forum ( as well as the State Commission and the National Commission) shall have the same power as are vested in a civil court under the Code of Civil Procedure in respect of summoning and enforcing attendance of any defendant or witness and examining the witness on oath; discovery and production of any document or other material object producible as evidence; the reception of evidence on affidavits; the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; issuing of any commission for the examination of any witness; and any other matter which may be prescribed. Section 14 makes provision for the nature of relief's that can be granted to the complainant on such a complaint. The provision of the Act are in addition to and not in derogation of the provision of any other law for the time being in force. (Section 3).

11. In this group of cases we are not concerned with goods and we are only concerned with rendering of services. Since the Act gives protection to the consumer in respect of service rendered to him, the expression 'service' in the Act has to be construed keeping in view the definition of "consumer" in the Act. It is, therefore, necessary to set out the definition of the expression 'consumer' contained in Section 2 (1)(d) insofar as it relates to services and the definition of the expression 'service' contained in Section 2 (1)(o) of the Act. The said provisions are as follows:

    Section 2 (1)(d) "consumer" means any person who,-

    1. omitted
    2. 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 and includes any beneficiary of such services other than the person who hires (or avails of) the service for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.

    Explanation- Omitted
    Section 2 (1)(o): 'service' means service of any description which is made available to the 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, (housing construction), entertainment, amusement or the purveying of news or other information, but does not include rendering of any service free of charge or under a contract of personal service".

12. The words "or avails of" after the word "hires" in Section 2 (1)(d)(ii) and the words "housing construction" in Section 2 (1)(o) were inserted by the Act 50 of 1993.

13. The definition of 'service' in Section 2(1)(o) of the Act can be split up into three parts- the main part, the inclusionary part and the exclusionary part. The main part is explanatory in nature and defines service to mean service of any description which is made available to the potential users. The inclusionary part expressly includes 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. The exclusionary part excludes rendering of any service free of charge or under a contract of personal service.

14. The definition of 'service' as contained in Section 2 (1)(o) of the Act has been construed by this court In Lucknow Development Authority v. M.K. Gupta, 1994 (1) SCC 243. After pointing out that the said definition is in three parts, the Court has observed: "The main clause itself is very wide. It applies to any service made available to potential users. The words 'any' and 'potential' are significant. Both are of wide amplitude. The word 'any' dictionarily means: 'one or some or all'. In Black's Law Dictionary it is explained thus, "word 'any' has a diversity of meaning and may be employed to indicate 'all' or 'every' as well as 'some' or 'one' and its meaning in a given statute depends upon the context and the subject-matter of the statute". The use of the word 'any' in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all. The other word 'potential' is again very wide. In Oxford Dictionary it is defined as 'capable of coming into being, possibility'. In Black's Law Dictionary it is defined "existing in possibility but not in act. Naturally and probably expected to come into existence at some future time, though not now existing; for example, the future product of grain or trees already planted, or the successive future installments or payments on a contract or engagement already made." In other words service which not only extended to actual users but those who are capable of using it are covered by the definition. The clause is thus very wide and extends to any or all actual or potential users. (p.255)

15. The contention that the entire objective of the Act is to protect the consumer against malpractice in business was rejected with the observations:
    "The argument proceeded on complete misapprehension of the purpose of the Act and even its explicit language. In fact the Act requires provider of service to be more objective and caretaking." (p.256)

16. Referring to the inclusive part of the definition it was said:
    "The inclusive clause succeeded in widening its scope but not exhausting the services which could be covered in earlier part. So any service except when it is free of charge or under a constraint of personal service is included in it." (p.257)

17. In that case the court was dealing with the question whether housing construction could be regarded as service under Section 2 (1)(o) of the Act. While the matter was pending in this Court, "housing construction" was inserted in the inclusive part by Ordinance No. 24 of 1993. Holding that housing activity is a service and was covered by the main part of the definition, the Court observed:
    "---- the entire purpose of widening the definition is to include in it not only day to day buying and selling activity undertaken by a common man but even such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer." (p.256)

18. In the present case the inclusive part of the definition of "service" is not applicable and we are required to deal with the questions falling for consideration in the light of the main part and the exclusionary part of the definition. The exclusionary part will require consideration only if it is found that in the manner of consultation, diagnosis and treatment a medical practitioner or a hospital/nursing home renders a service falling within the main part of the definition contained in Section 2 (1)(o) of the Act. We have, therefore, to determine whether medical practitioners and hospital/nursing homes can be regarded as rendering a "service" as contemplated in the main part of Section 2 (1)(o). This determination has to be made in the light of the aforementioned observations in Lucknow Development Authority (supra). We will first examine this question in relation to medical practitioners.

19. It has been contended that in law there is a distinction between a profession and an occupation and that while a person engaged in an occupation renders service which falls within the ambit of Section 2 (1)(o) the service rendered by a person belonging to a profession does not fall within the ambit of the said provision and, therefore, medical practitioners who belong to the medical profession are not covered by the provisions of the Act. It has been urged that medical practitioners are governed by the provisions of the Indian Medical Council Act, 1956 and the Code of Medical Ethics made by the Medical Council of India, as approved by the Government of India under Section 3 of the Indian Medical Council Act, 1956 which regulates their conduct as members of the medical profession and provides for disciplinary action by the Medical Council of India and/or State Medical Councils against a person for professional misconduct.

20. While expressing his reluctance to propound a comprehensive definition of a 'profession', Scrutton L.J. has said " 'profession' in the present use of language involves the idea of an occupation requiring either purely intellectual skill, or of manual skill controlled, as in painting and sculpture, or surgery, by the intellectual skill of the operator, as distinguished from an occupation which is substantially the production or sale of commodities. The line of demarcation may vary from time to time. The word 'profession' used to be confined to the three learned professions, the Church, Medicine and Law. It has now, I think, a wider meaning." (See Commissioner of Inland Revenue v. Maxse, 1919 1 K.B. 647 at p. 657).

21. According to Rupert M. Jackson and John L. Powell the occupations which are regarded as professions have four characteristics, viz.,
    1. the nature of the work which is skilled and specialized and a substantial part is mental rather than manual;
    2. commitment to moral principles which go beyond the general duty of honesty and a wider duty to community which may transcend the duty to a particular client or patient;
    3. professional association which regulates admission and seeks to uphold the standards of the profession through professional codes on matters of conduct and ethics; and
    4. high status in the community.

22. The learned authors have stated that during the twentieth century an increasing number of occupations have been seeking and achieving "professional" status and that this has led inevitably to some blurring of the features which traditionally distinguish the professions from other occupations. In the context of the law relating to Professional Negligence the learned authors have accorded professional status to seven specific occupations, namely, (i) architects, engineers and quantity surveyors, (ii) surveyors, (iii) accountants, (iv) solicitors, (v) barristers, (vi) medical practitioners and (vii) insurance brokers. (See: Jackson & Powell on Professional Negligence, paras 1-01 and 1-03, 3 rd Edn.).

23. In the matter of professional liability professions differ from other occupations for the reason that professions operate in a sphere where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In devising a rational approach to professional liability which must provide proper protection to the consumers while allowing for the factors mentioned above, the approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services. (See: Jackson and Powell (supra), paras 1-04, 1-05 and 1-06). Immunity from suit was enjoyed by certain professions on the ground of public interest. The trend is towards narrowing of such immunity and it is no longer available to architects in respect of certificates negligently given and to mutual valuers. Earlier, barristers were enjoying complete immunity but now even for them the field is limited to work done in court and to a small category of pretrial work which is directly related to what transpires in court.

    (See: Jackson and Powell (supra), para 1-66; Saif Ali v. Sidney Mitchell & Co., (1980) 1 A.C. 198; Rees v. Sinclair (1974) 1 N.Z.L.R. 180; Giannarelli v. Wraith (1988) 81 A.L.R. 417). Medical practitioners do not enjoy any immunity and they can be sued in contract or tort on the ground that they have failed to exercise reasonable skill and care.

24. It would thus appear that medical practitioners, though belonging to the medical profession, are not immune from a claim of damages on the ground of negligence. The fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of Medical Council of India and/or State Medical Councils is no solace to the person who has suffered due to their negligence and the right of such person to seek redress is not affected.

25. Referring to the changing position with regard to the relationship between the medical practitioners and the patient in the United Kingdom, it has been said:
    " Where, does the doctor stand today in relation to society ? To some extent, he is a servant of the public, a public which is widely (though not always well) informed on medical matters. Society is conditioned to distrust paternalism and the modern medical practitioner has little wish to be paternalistic. The new talk is of 'producers and consumer's and the concept that 'he who pays the piper calls the tune' is established both within the profession and in its relationship with patients. The competent patient's inalienable rights to understand his treatment and to accept or refuse it are now well established." (pp.. 16-17)
    "Consumerism is now firmly established in medical practice- and this has been encouraged on a wide scale by government in United Kingdom through the introduction of 'charters'. Complaint is central to this ethos- and the notion that blame must be attributed and compensated, has a high priority." (p.192) (Mason & McCall Smith: Law and Medical Ethics, 4th Edn.)

26. In Arizona v. Maricopa County Medical Society, 457 US 332- 73 L. Ed. (2nd) 48, two Arizona county medical societies formed two foundations for medical care to promote fee-for-service medicine and to provide the community with a competitive alternative to existing health insurance plans and by agreement amongst the doctors established the schedule of maximum fees that participating doctors agreed to accept as payment in full for services performed for patients insured under plans. It was held that the maximum fee agreement, as price fixing agreement, are per se unlawful under the Sherman Act. It was observed: "Nor does the fact doctors- rather than non-professionals- are the parties to the price-fixing agreement support the respondents position. The respondents claim relief from the per se rule is simply that the doctors agreement not to charge certain insured more than a fixed price facilitates the successful marketing of an attractive insurance plan. But the claim that the price restraint will make it easier for customers to pay does not distinguish the medical profession from any other provider of goods or service." (pp. 348-49, 61-62)

27. We are, therefore, unable to subscribe to the view that merely because medical practitioners belong to the medical profession they are outside the purview of the provisions of the Act and the services rendered by medical practitioners are not covered by Section 2 (1)(o) of the Act.

28. Shri Harish Salve, appearing for the Indian Medical Association, has urged that having regard to the expression 'which is made available to potential users' contained in Section 2 (1)(o) of the Act, medical practitioners are not contemplated by Parliament to be covered within the provisions of the Act. He has urged that the said expression is indicative of the kind of service the law contemplates, namely, service of an institutional type which is really a commercial enterprise and open and available to all who seek to avail thereof. In this context, reliance has also been placed on the word 'hires' in subclause (ii) of the definition of 'consumer' contained in Section 2 (1)(d) of the Act. We are unable to uphold this contention. The word 'hires' in Section 2 (1)(d)(ii) has been used in the same sense as 'avails of' as would be evident from the words 'when such services are availed of' in the latter part of Section 2 (1)(d)(ii). By inserting the words 'or avails of' after the word 'hires' in Section 2 (1)(d)(ii) by the Amendment Act of 1993, Parliament has clearly indicated that the word 'hires' has been used in the same sense as 'avails of'. The said amendment only clarified what was implicit earlier. The word 'use' also means 'to avail oneself of'. (See: Black's Law Dictionary, 6th Edn., at p.1541). The word 'user' in the expression 'which is made available to potential users' in the definition of 'service' in Section 2(1)(o) has to be construed having regard to the definition of 'consumer' in Section 2(1)(d)(ii) and, if so construed, it means 'availing of service'. From the use of the word 'potential users' it cannot, therefore, be inferred that the services rendered by medical practitioners are not contemplated by Parliament to be covered within the expression 'service' as contained in Section 2 (1)(o).

29. Shri Harish Salve has also placed reliance on the definition of the expression 'deficiency' as contained in Section 2 (1)(g) of the Act which provides as follows:
    "Section 2 (1)(g): "deficiency" means 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."

30. The submission of Shri Salve is that under the said clause the deficiency with regard to any fault, imperfection, shortcoming or inadequacy in respect of service has to be ascertained on the basis of certain norms relating to quality, nature and manner of performance and that medical services rendered by a medical practitioner cannot be judged on the basis of any fixed norms and, therefore, a medical practitioner cannot be said to have been covered by the expression 'service' as defined in Section 2(1)(o). We are unable to agree. While construing the scope of the provisions of the Act in the context of deficiency in service it would be relevant to take note of the provisions contained in Section 14 of the Act which indicate the relief's that can be granted on a complaint filed under the Act. In respect of deficiency of services the following relief's can be granted:
    1. return of charges paid by the complainant. [clause (c)]
    2. payment of such amount as may be awarded as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party. [Clause (d)]
    3. removal of the defects or deficiencies in the services in question. [Clause (e)]

31. Section 14 (1)(d) would, therefore, indicate that the compensation to be awarded is for loss or injury suffered by the consumer due to the negligence of the opposite party. A determination about deficiency in service for the purpose of Section 2 (1)(g) has, therefore, to be made by applying the same test as is applied in an action for damages for negligence. The standard of care which is required from medical practitioners as laid down by McNair J. in his direction to the jury in Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582, has been accepted by the House of Lords in a number of cases. (See: Whitehouse v Jordan, 1981 (1) WLR 246; Maynard v. West Midlands Regional Health Authority, 1984 (1) WLR 634; Sidaway v. Governors of Bethlehem Royal Hospital, 1985 AC 871). In Bolam (supra) McNair J. has said:
    "But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." (p.586)

32. In an action for negligence in tort against a surgeon this court, in Laxman Balkrishna Joshi v. Trimbak Bapu Godbole & Anr., 1969 (1) SCR 206, has held:
    "The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give and a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. (p.213)

33. It is, therefore, not possible to hold that in view of the definition of "deficiency" as contained in Section 2 (1)(g) a medical practitioner must be treated to be excluded from the ambit of the Act and the service rendered by them is not covered under Section 2(1)(o).

34. Another contention that has been urged by learned counsel appearing for the medical profession to exclude medical practitioners from the ambit of the Act is the composition of the District Forum, the State Commission and the National Commission is such that they cannot fully appreciate the complex issues which may arise for determination and further that the procedure that is followed by these bodies for determination of issues before them is not suitable for the determination of the complicated questions which arise in respect of claims for negligence in respect of the services rendered by medical practitioners. The provisions with regard to the composition of the District Forum are contained in Section 10 of the Act which provides that the President of the Forum shall be a person who is or who has been or is qualified to be a District Judge and the other two members shall be persons of ability, integrity and standing, having adequate knowledge or experience of, or having shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration and one of them shall be a woman. Similarly, with regard to the composition of the State Commission it is provided in Section 16 of the Act that the President of the Commission shall be a person who is or has been a judge of the High Court appointed by the State Government in consultation with the chief justice of the High Court and that the other two members shall be persons of ability, integrity and standing, having adequate knowledge or experience, of, or having shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, and one of them shall be a woman. The composition of the National Commission is governed by Section 20 of the Act which provides that the President of the Commission shall be a person who is or who has been a Judge of the Supreme Court to be appointed but he Central Government after consultation with the Chief Justice of India and four other members shall be persons of ability, integrity and standing having knowledge or experience of, or having shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration and one of them shall be a woman. It will thus be seen that the President of the District Forum is required to be a person who is or who has been or is qualified to be a District Judge and the President of the State Commission is required to be a person who is or has been the Judge of the High Court and the President of the National Commission is required to be a person who is or who has been a Judge of the Supreme Court, which means that all the Consumer Disputes Redressal Agencies are headed by a person who is well versed in law and has considerable judicial or legal experience. It has, however, been submitted that in case there is difference of opinion, the opinion of the majority is to prevail and, therefore, the President may be out-voted by the other members and that there is no requirement that the members should have adequate knowledge or experience in dealing with problems relating to medicine. It is no doubt true that the decisions of the District Forum as well as the State Commission and the National Commission have to be taken by majority. But the presence of a person well versed in law as the President will have a bearing on the deliberations of these Agencies and their decisions. As regards the absence of a requirement about a member having adequate knowledge or experience in dealing with the problems relating to medicine it may be stated that the persons to be chosen as members are required to have knowledge and experience in dealing with problems relating to various fields connected with the object and purpose of the Act, viz. protection and interests of the consumers. The said knowledge and experience would enable them to handle the consumer disputes coming up before them for settlement in consonance with the requirement of the Act. To say that the members must have adequate knowledge or experience in the field to which the goods or services, in respect of which the complaint is made are related would lead to impossible situations. At one time there will be two members in the District Forum and they would have knowledge or experience in two fields which would mean that complaints in respect of goods or services relating to other fields would be beyond the purview of the District Forum. Similarly in the State Commission there may be members having knowledge or experience in fields other than the fields in which members of the District Forum have knowledge or experience. It would mean that the goods or services in respect of which the District Forum can entertain a complaint will be outside the purview of the State Commission. Same will the position in respect of the National Commission. Since the goods or services in respect of which complaint can be filed under the Act may relate to number of fields it cannot be expected that the members of the Consumer Disputes Redressal Agencies must have expertise in the field to which the goods or services in respect of which complaint is filed, are related. It will be for the parties to place the necessary material and the knowledge and experience which the members will have in the fields indicated in the Act would enable them to arrive at their findings on the basis of that material. It cannot, therefore, be said that since the members of the Consumer Disputes Redressal Agencies are not required to have knowledge and experience in medicine, they are not in a position to deal with issues which may arise before them in proceedings arising out of complaints about the deficiency in service rendered by medical practitioners.

35. Discussing the role of lay persons in decision making, Prof. White has referred to two divergent views. One view holds that lay adjudicators are superior to professional judges in the application of general standards of conduct, in their notions of reasonableness, fairness and good faith and that they act as 'an antidote against excessive technicality' and 'some guarantee that the law does not diverge too far from reality'. The other view, however, is that since they are not experts, lay decision makers present a very real danger that the dispute may not be resolved in accordance with the prescribed rules of law and the adjudication of claims may be based on whether the claimant is seen as deserving rather than on legal rules of entitlement. Prof. White has indicated his preference for a Tribunal composed of a lawyer as Chairman, and two lay members. Such a Tribunal, according to Prof. White, would present an opportunity to develop a model of adjudication that combines the merits of lay decision making with legal competence and participation of lay members would lead to general public confidence in the fairness of the process and widen the social experience represented by the decision makers. Prof. White says that apart from their breadth of experience, the key role of lay members would be in ensuing that procedures do not become too full of mystery and ensure that litigants before them are not reduced to passive spectators in a process designed to resolve their disputes. (See: Prof. Robin C.A. White: The Administration of Justice. 2nd Edition, p. 345).

36. In the mater of constitution of the District Forum, State Commission and the National Commission the Act combines with legal competence the merits of lay decision making by members having knowledge and experience in dealing with problems relating to various fields which are connected with the object and purpose of the Act, namely, protection and interests of the consumers.

37. Moreover, there is further safeguard of an appeal against the order made by the District Forum to the State Commission and against the order made by the State Commission to the National Commission and a further appeal to this Court against the order made by the National Commission. It cannot, therefore, be said that the composition of the Consumer Disputes Redressal Agencies is such as to render them unsuitable for adjudicating issues arising in a complaint regarding deficiency in service rendered by a medical practitioner.

38. As regards the procedure to be followed by these agencies in the matter of determination of the issues coming up for consideration it may be stated that under Section 13 (2)(b), it is provided that the District Forum shall proceed to settle the consumer disputes (i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or (ii) on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum. In Section 13 (4) of the Act it is further provided that the District Forum shall have the same powers as are vested in the civil court under the Code of Civil Procedure while trying a suit in respect of the following matters:
    1. the summoning and enforcing attendance of any defendant or witness and examining the witness on oath;
    2. the discovery and production of any document or other material object producible as evidence;
    3. the reception of evidence on affidavits;
    4. the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
    5. issuing of any commission for the examination of any witness; and
    6. any other matter which may be prescribed.

    The same provisions apply to proceedings before the State Commission and the National Commission. It has been urged that proceeding involving negligence in the matter of rendering services by a medical practitioner would raise complicated questions requiring evidence of experts to be recorded and that the procedure which is followed for determination of consumer disputes under the Act is summary in nature involving trial on the basis of affidavits and is not suitable for determination of complicated questions. It is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint of deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency in rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency of service may be due to obvious faults which can be easily established such as removal of the wrong limb, or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning ( as in Chinkeow vs. Government of Malaysia, (1967) 1 WLR 813 P.C. or use of wrong gas during the course of an anesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act.

    In complaints involving complicated questions issues requiring recording of evidence of experts, the complainant can be asked to approach the civil court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the civil court for necessary relief. We are, therefore, unable to hold that on the ground of composition of the Consumer Disputes Redressal Agencies or on the ground of the procedure which is followed by the said agencies for determining the issues arising before them, the services rendered by the medical practitioners are not intended to be included in the expression 'service' as defined in Section 2 (1)(o) of the Act.

39. Keeping in view the wide amplitude of the definition of 'service' in the main part of Section 2 (1)(o) as construed by this Court in Lucknow Development Authority (supra), we find no plausible reason to cut down the width of that part so as to exclude the services rendered by a medical practitioner from the ambit of the main part of Section 2 (1)(o).

40. We may now proceed to consider the exclusionary part of the definition to see whether such service is excluded by the said part. The exclusionary part excludes from the main part service rendered (i) free of charge; or (ii) under a contract of personal service.

41. Shri Salve has urged that the relationship between a medical practitioner and the patient is of trust and confidence and, therefore, it is in the nature of a contract of personal service and the service rendered by the medical practitioner to the patient is not 'service' under Section 2 (1)(o) of the Act. This contention of Shri Salve ignores the well recognized distinction between a 'contract of personal service' and a 'contract for services'. (See: Halsbury's Laws of England. 4th Edn., Vol. 16, para 501; Dharangadhara Chemical Works Ltd. v. State of Saurashtra, 1957 SCR 152 at p. 157). A 'contract for services' implies a contract whereby one party undertakes to render services e.g. professional or technical services, to or for another in the performance of which he is not subject to detailed direction and control but exercises professional or technical skill and uses his own knowledge and discretion. (See: Oxford Companion to Law, p. 1134). A 'contract of service' implies relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance. (See: Stroud's Judicial Dictionary, 5th Edn., p. 540; Simmons v. Heath Laundry Co. (1910) 1 K.B. 543 and Dharangadhara Chemical Works (supra) at p. 159). We entertain no doubt that Parliamentary draftsman was aware of this well accepted distinction between "contract of service' and "contract for services" and has deliberately chosen the expression 'contract of service' instead of the expression 'contract for services', in the exclusionary part of the definition of 'service' in Section 2 (1)(o). The reason being that an employer cannot be regarded as a consumer in respect of the services rendered by his employee in pursuance of a contract of employment. By affixing the adjective 'personal' to the word "service" the nature of the contracts which are excluded are not altered. The said adjective only emphasizes that what is sought to be excluded in personal service only. The expression "contract of service" in the exclusionary part of Section 2 (1)(o) must, therefore, be construed as excluding the services rendered by an employee to his employer under the contract of personal service from the ambit of the expression "service".

42. It is no doubt true that the relationship between a medical practitioner and a patient carries within it a certain degree of mutual confidence and trust and, therefore, the services rendered by the medical practitioner can be regarded as services of personal nature but since there is no relationship of master and servant between the doctor and the patient the contract between the medical practitioner and his patient cannot be treated as a contract of personal service but is a contract for services and the service rendered by the medical practitioner to his patient under such a contract is not covered by the exclusionary part of the definition of 'service' contained in Section 2 (1)(o) of the Act.

43. Shri Rajeev Dhavan has, however, submitted that the expression 'contract of personal service' contained in Section 2 (1)(o) of the Act has to be confined to employment of domestic servants only. We do not find any merit in this submission. The expression 'personal service' has a well known legal connotation and has been construed in the context of the right to seek enforcement of such a contract under the Specific Relief Act. For that purpose a contract of personal service has been held to cover a civil servant, the managing agents of a company and a professor in the University. (see: The High Commissioner for India v. I.M. Lall, (1948) L.R. 75 I.A. 225; Ram Kissendas Dhanuka v. Satya Charan Law, (1949) L.R. 77 I.A. 128; and Dr. S.B. Dutt v. University of Delhi, 1959, SCR 1236). There can be contract of personal service if there is a relationship of master and servant between the doctor and the person availing his services and in that event the services rendered by the doctor to his employer would be excluded from the purview of the expression 'service' under Section 2 (1)(o) of the Act by virtue of the exclusionary clause in the said definition.

44. The other part of the exclusionary clause relates to services rendered "free of charge". The medical practitioners, Government hospitals/nursing homes and private hospitals/nursing homes (hereinafter called "doctors and hospitals") broadly fall into three categories:-
    1. where services are rendered free of charge to everybody availing the said services.
    2. where charges are required to be paid by everybody availing the services and
    3. where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charges.

    There is no difficulty in respect of first two categories. Doctors and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of "service" under Section 2 (1)(o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. So far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of Section 2 (1)(o) of the Act. The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2 (1)(o) of the Act.

45. The question for our consideration is whether the service rendered to patients free of charge by the doctors and hospitals in category (iii) is excluded by virtue of the exclusionary clause in Section 2 (1)(o) of the Act. In our opinion the question has to be answered in the negative. In this context it is necessary to bear in mind that the Act has been enacted "to provide for the protection of the interests of consumers" in the background of the guidelines contained in the Consumer Protection Resolution passed by the U.N. General Assembly on April 9, 1985. These guidelines refer to "achieving or maintaining adequate protection for their population as consumers" and "encouraging high levels of ethical conduct for those engaged in the protection and distribution of goods and service to the consumers." The protection that is envisaged by the Act, is therefore, protection for consumers as a class. The word "users" (in plural), in the phrase 'potential users' in Section 2 (1)(o) of the Act also gives an indication that consumers as a class are contemplated. The definition of 'complainant' contained in Section 2 (1)(b) of the Act which includes, under clause (ii), any volunteer consumer association, and clauses (b) and (c) of Section 12 which enable a complaint to be filed by any recognized consumer association or one or more consumers where there are numerous consumers, having the same interest, on behalf of or for the benefit of all consumers so interested, also lend support to the view that the Act seeks to protect the interests of consumers as a class. To hold otherwise would mean that the protection of the Act would be available to only those who can afford to pay and such protection would be denied to those who cannot so afford, though they are people who need the protection more. It is difficult to conceive that the legislature intended to achieve such a result. Another consequence of adopting a construction, which would restrict the protection of the Act to persons who can afford to pay for the services availed by them and deny such protection to those who are not in a position to pay for such services, would be that the standard and quality of services rendered at an establishment would cease to be uniform. It would be of a higher standard and of better quality for persons who are in a position to pay for such service while the standard and quality would be inferior for a person who cannot afford to pay for such service and who avail the service without payment. Such a consequence would defeat the object of the Act.

    All persons who avail the services by doctors and hospitals in category (iii), are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail the same free of charge. Most of the doctors and hospitals work on commercial lines and the expenses incurred for providing services free of charge to patients who are not in a position to bear the charges are met out of the income earned by such doctors and hospitals from services rendered to paying patients. The Government hospitals may not be commercial in that sense but on the overall consideration of the objectives and the scheme of the Act it would not be possible to treatment the Government hospitals differently. We are of the view that in such a situation the persons belonging to "poor class" who are provided service free of charge are the beneficiaries of the survive which is hired or availed of by the "paying class". We are, therefore, of opinion that the service rendered by the doctors and hospitals falling in category (iii) irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression "service" as defined in Section 2 (1)(o) of the Act. We are further of the view that persons who are rendered free service are "beneficiaries" and as such come within the definition of "consumer" under Section 2 (1)(d) of the Act.

46. In respect of the hospitals/nursing homes Government and non-Government falling in category (i), i.e., where services are rendered free of charge to everybody availing the services, it has been urged by Shri Dhawan that even though the service rendered at the hospital, being free of charge, does not fall within the ambit of Section 2 (1)(o) of the Act in so far as the hospital is concerned, the said service would fall within the ambit of Section 2 (1)(o) of the Act since it is rendered by a medical officer employed in the hospital who is not rendering the service free of charge because the said medical officer receives emoluments by way of salary for employment in the hospital. There is no merit in this contention. The medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if the service, as rendered by the hospital does not fall within the ambit of Section 2 (1)(o), being free of charge, the same service cannot be treated as service under Section 2 (1)(o) for the reason that it has been rendered by a medical officer in the hospital who receives salary for employment in the hospital. There is no direct nexus between the payment of the salary to the person of the medical officer by the hospital and the person to whom the service is rendered.

    The salary that is paid by the hospital administration to the employee medical officer cannot be regarded as payment made on behalf of the person availing the service or for his benefit so as to make the person availing the service a "consumer" under Section 2 (1)(d) in respect of the service rendered to him. The service rendered by the employee medical officer to such a person would, therefore, continue to be service rendered free of charge and would be outside the purview of Section 2 (1)(o).

47. A contention has also been raised that even in Government hospitals/health centers/dispensaries where services are rendered free of charge to all the patients the provisions of the Act shall apply because of the expenses of running the said hospital are met by appropriation from the Consolidated Fund which is raised from the taxes paid by the tax payer. We do not agree.

48. The essential characteristic of a tax are that (i) it is imposed under statutory power without the tax-payer's consent and the payment is enforced by law; (ii) it is an imposition made for public purposes without reference to any special benefit to be conferred on the payer of the tax and (iii) it is a part of the common burden, the quantum of imposition upon the tax payer depends generally upon his capacity to pay. (See: The Commissioner, Hindu Religious Endowments, Madras v. Sri Laksmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 at pp. 1040-41). The tax paid by the person availing the service at a Government Hospital cannot be treated as a consideration or charge for the service rendered at the said hospital and such service though rendered free of charge does not cease to be so because the person availing the service happens to be a tax payer.

49. Adverting to the individual doctors employed and serving in the hospitals, we are of the view that such doctors working in the hospitals/nursing homes/dispensaries whether Government or private-belonging to categories (ii) and (iii) above would be covered by the definition "service" under the Act and as such are amenable to the provisions of the Act along with the management of the hospital, etc. jointly and severally.

50. There may, however, be a case where a person who has taken an insurance policy for Medicare where under all charges for consultation, diagnosis and medical treatment are borne by the insurance company. In such a case the person receiving the treatment is a beneficiary of the service which has been rendered to him by the medical practitioner, the payment for which would be made by the insurance company under the insurance policy. The rendering of such service by the medical practitioner cannot be said to be free of charge and would, therefore, fall within the ambit of the expression 'service' in Section 2 (1)(o) of the Act. So also there may be cases where as a part of the condition of service the employer bears the expense of medical treatment of the employee and his family members dependent upon him. The service rendered to him by the medical practitioner would not be free of charge and would, therefore, constitute service under Section 2 (1)(o).

51. Shri A.M. Singhvi has invited our attention to the following observations of Lord Denning M.R. in Whitehouse v. Jordan & Anr., (1980) 1 All. E.R. 650.
    "Take heed of what has happened in the United States. "Medical malpractice' cases there are very worrying, especially as they are tried by juries who have sympathy for the patient and none for the doctor, who is insured. The damages are colossal. The doctors insure but the premiums are very high and these have to be passed on in fees to the patients. Experienced practitioners are known to have refused to treat patients for fear of being accused of negligence. Young men are even deterred from entering the profession because of the risks involved. In the interests of all, we must avoid such consequences in England. Not only must we avoid excessive damages, we must say, and say firmly, that, in a professional man, an error of judgment is not negligence." (p.658)

52. Relying on these observations learned counsel has painted a grim picture that if medical practitioners are brought within the purview of the Act the consequences would be huge increase in medical expenditure on account of insurance charges as well as tremendous increase in defensive medicine and that medical practitioners may refuse to attend to medical emergencies and there will be no safeguards against frivolous and vexatious complaints and consequent blackmail. We do not entertain such an apprehension. In the first place, it may be stated that the aforementioned observations of Lord Denning were made in the context of the substantive law governing actions for damages on the ground of negligence against medical practitioners. There too the last sentence in the said observation that "an error of judgment is not negligent" has not been approved, in appeal, by the House of Lords. (See: 1981 (1) All. E.R. 267). By holding that medical practitioners fall within the purview of the Act no change is brought about in the substantive law governing claims claims for compensation on the ground of negligence and the principles which apply to determination of such a claim before the civil court would equally apply to consumer disputes before the Consumer Disputes Redressal Agencies under the Act. The Act only provides an inexpensive and speedy remedy for adjudication of such claims.

    An analytical study of tort litigation in India during the period from 1975 to 1985 made by Prof. Galanter reveals that a total number of 416 tort cases were decided by the High Courts and this Court, as reported in the All India Reporter, out of which 360 cases related to claims under the Motor Vehicle Act and cases relating to medical malpractice were only three in number (See: Upendra Baxi and Thomas Paul, Mass Disasters and Multinational Liability. The Bhopal Case, pp. 214-218). One of the factors inhibiting such claims is the requirement regarding court fee that must be paid by the plaintiff in an action for damages on the ground of negligence. Since no court fee is required to be paid on a complaint filed under the Act it would be possible for persons who have suffered injury due to deficiency in service rendered by medical practitioners or at hospitals/nursing homes to seek redress. The conditions prevailing in India cannot, therefore, be compared with those in England and the United States.

53. As regards the criticism of the American malpractice litigation by the British judiciary it has been said:
    "Discussions of these important issues is sometimes clouded by an over-simplistic comparison between England and American "malpractice" litigation. Professor Miller noted in 1986 that malpractice claims were brought in the United States nearly ten times as often as in England, and that this is due to a complex combination of facts, including cultural differences, judicial attitudes, differences in the legal system and the rules about costs. She points to the deterrent value of malpractice litigation and resent some of the criticism of the American system expressed by the British judiciary. Interestingly, in 1989 the number of medical negligence claims and the size of medical malpractice insurance premiums started to fall in New York, California and many other states. It is thought that this is due in part to legislation in an number of states limiting medical malpractice claims, and in part to improved patient care as a result of litigation." (Jackson & Powell on Professional Liability, 3rd Edn., para 6-25, p.466)

54. Dealing with the present state of medical negligence in the United Kingdom it has been observed:
    " The legal system, then, is faced with the classic problem of doing justice to both parties. The fears of the medical profession must be taken into account while the legitimate claims of the patient cannot be ignored."
    " Medical negligence apart, in practice, the courts are increasingly reluctant to interfere in clinical matters. What was once perceived as a legal threat to medicine has disappeared a decade later. While the court will accept the absolute right of a patient to refuse treatment, they will, at the same time, refuse to dictate to doctors what treatment they should give. Indeed, the fear could be that, if anything, the pendulum has swung too far in favor of therapeutic immunity." (p.16)

    "It would be a mistake to think of doctors and hospitals as easy targets for the dissatisfied patient. It is still very difficult to raise an action of medical negligence in Britain; some such as the Association of the Victims of Medical Accidents, would say that it is unacceptably difficult. Not only are there practical difficulties in linking the plaintiff's injury to medical treatment, but the standard of care in medical negligence cases is still effectively defined by the profession itself. All these factors, together with the sheer expense of bringing legal action and the denial of legal aid to all except the poorest, operate to inhibit medical litigation in a way in which the American system, with its contingency fees and its sympathetic juries, does not."
    "It is difficult to single out any one cause for what increase there has been in the volume of medical negligence actions in the United Kingdom. A common explanation is that there are, quite simply, more medical accidents occurring- whether this is due to increased pressure on hospital facilities, to falling standards of professional competence or, more probably to the ever-increasing complexity of therapeutic and diagnostic methods." (p.191)
    "A patient who has been injured by an act of negligence has suffered in a way which is recognized by the law- and by the public at large-as deserving compensation. This loss may be continuing and what may seem like an unduly large award may be little more than that sum which is required to compensate him for such matters as loss of future earnings and the future cost of medical and nursing care. To deny a legitimate claim would amount to substantial injustice. After all, there is no difference in legal theory between the plaintiff injured through medical negligence and the plaintiff injured in an industrial or motor accident." (pp. 192-93) [Mason's Law and Medical Ethics, 4th Edn.]

55. We are, therefore, not persuaded to hold that in view of the consequences indicated by Lord Denning in Whitehouse v. Jordan (supra) medical practitioners should be excluded from the purview of the Act.

56. On the basis of the above discussion we arrive at following conclusions:
    1. Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2 (1)(o) of the Act.
    2. The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.
    3. A 'contract of personal service' has to be distinguished from a 'contract for personal services'. In the absence of a 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'. Such a service is service rendered under a 'contract for personal services' and is not covered by the exclusionary clause of the definition of 'service' contained in Section 2 (1)(o) of the Act.
    4. The expression 'contract of personal service' in Section 2 (1)(o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under a contract of employment would be outside the purview of 'service' as defined in Section 2 (1)(o) of the Act.
    5. Service rendered free of charge by a medical practitioner attached to a hospital/nursing home or a medical officer employed in a hospital/nursing home where such services are rendered free of charge to everybody, would not be 'service' as defined in Section 2 (1)(o) of the Act. The payment of a token amount or registration purpose only at the hospital/nursing home would not alter the position.
    6. Service rendered at a non-Government hospital/Nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service-is outside the purview of the expression 'service' as defined in Section 2 (1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
    7. Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression 'service' as defined in Section 2 (1)(o) of the Act.
    8. Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in Section 2 (1)(o) of the Act irrespective of the fact that the service rendered free of charge to persons who are not in a position to pay for such services. Free service would also be 'service' and the recipient a "consumer" under the Act.
    9. Service rendered at a Government hospital/health center/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service- is outside the purview of the expression 'service' as defined in Section 2 (1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
    10. Service rendered at a Government hospital/health center/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression 'service' as defined in Section 2 (1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer under the Act.
    11. Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in section 2 (1)(o) of the Act.
    12. Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under Section 2 (1)(o) of the Act.

57. In view of the conclusions aforementioned the judgment of the National Commission dated April 21, 1992 in First Appeal No.48 of 1991 [M/s Cosmopolitan Hospitals & Anr. v. Smt. Vasantha P. Nair] and the judgment dated November 16, 1992 in First Appeal No. 97 of 1991 [Dr. Sr. Louie & Anr. v. Smt. Kannolil Pathumma & Anr.] holding that the activity of providing medical assistance for payment carried on by hospitals and members of the medical profession falls within the scope of the expression 'service' as defined in Section 2 (1)(o) of the Act and that in the event of any deficiency in the 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, must be upheld and Civil Appeal Nos. 688/93 and 689/93 and S.L.P. (Civil) Nos. 6885/92, 6950/92 and 351/93 filed against the said judgment have been dismissed. The National Commission in its judgment dated May 3, 1993 in O.P. No. 93/92 has held that since the treatment that was given to the deceased husband of the complainant in the nursing home belonging to the opposite party was totally free of any charge it does not constitute 'service' as defined in Section 2 (1)(o) of the Act. The Tribunal has not considered the question whether services are rendered free of charge to all the patients availing services in the said nursing home or such services are rendered free of charge only to some of the patients and are rendered on payment of charges to the rest of the patients. Unless it is found that the services are rendered free of charge to all the patients availing services at the nursing home, it cannot be held that the said services do not constitute 'service' as defined in Section 2 (1)(o) of the Act. Civil Appeal No. 254/94 has, therefore, to be allowed and the matter has to be remitted to the National Commission for consideration in light of this judgment. The judgment of the Madras High Court in Dr. C.S. Subramanian v. Kumarasamy & Anr. (supra), holding that the 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 definition of 'service' in Section 2 (1)(o) and a patient who undergoes treatment under a medical practitioner or a hospital by way of diagnosis and treatment both medicinal and surgical, cannot be considered to be a 'consumer' within the meaning of Section 2 (1)(d) of the Act cannot be sustained and Civil Appeals Nos. 4664-65/94 as well as Civil Appeals arising out of S.L.P. (Civil) Nos. 21775/94 and 18445-73/94 have to be allowed and the said judgment of the Madras High Court has to be set aside and the writ petitions disposed of by the said judgment have to be dismissed. The judgment of the National Commission dated December 15, 1989 in First Appeal No. 2 of 1989 holding that services rendered in Government hospitals are not covered by the expression 'service' as defined in Section 2 (1)(o) of the Act cannot be upheld in its entirety but can be upheld only to the extent as indicated in conclusion No. 9. Civil Appeal arising out of S.L.P. (Civil) No. 18497/93 has to be allowed and the complaint remitted to the State Commission for consideration in the light of this judgment. S.L.P. (Civil) Nos. 21348-21349/93 have been filed against the judgment of the Kerala High Court dated October 6, 1993 in Writ Petitions filed on behalf of the hospitals claiming that the services rendered by the hospitals do not fall within the ambit of Section 2 (1)(o) of the Act. The said Writ Petitions were dismissed by the High Court having regard to the decision of the National Commission in Cosmopolitan Hospital (supra) and the pendency of appeal against the said decision before this Court. Since the decision of the National Commission in Cosmopolitan Hospital (supra) is being upheld by us, S.L.P. (Civil) Nos. 21348-21349.93 have to be dismissed.

58. Writ Petition (Civil) No. 16/94 has been filed by the Cosmopolitan Hospital (P) Ltd. and K. Venugopalan Nair who have also filed S.L.P. (Civil) Nos. 6885/92 and 6950/92 against the judgment of the National Commission dated April 21, 1992. In the Writ Petition, the said writ petitioners have sought a declaration that the provisions of the Act are not applicable to alleged deficiency in medical service and that if the said provisions are held to be applicable to the medical profession and hospitals the same may be declared as unconstitutional as being violative of Articles 14 and 19 (1)(g) of the Constitution. As regards the first part of the prayer regarding the applicability of the provisions of the Act to the alleged deficiency in medical service, we have already considered the matter and found that the provisions of the Act are