Dr. A.S. Chandra and Ors. v Union of India and Ors. (1992)

When the Consumer Protection Act 1986 came in, doctors argued that it could not touch them: a patient does not "hire" a doctor, the doctor-patient relationship is "personal service", and the new consumer forums were no place to decide medical negligence. This Division Bench of the Andhra Pradesh High Court rejected every one of those arguments and held that medical services rendered for consideration by private doctors and private nursing homes are "service" under the Act.

The key move is a distinction every student must be able to state: the Act excludes a contract of personal service (master and servant), but not a contract for personal services (the doctor and patient). The case also settles three side-questions — limitation, election between a civil suit and a consumer complaint, and whether "compensation" includes damages.

This was a batch of writ appeals and writ petitions decided by a common judgment.

In the lead appeal, the wife of the fourth respondent was treated at Sarada Nursing Home, Chirala, run by Dr. A.S. Chandra, a private practitioner. She was operated upon, developed peritonitis, was shifted to the Government Hospital, Guntur, and died there. The nursing home had collected Rs. 1,100 in all as fees. Her husband filed a consumer complaint before the District Forum, Prakasam, alleging negligence.

Dr. Chandra filed a writ petition challenging the Forum's jurisdiction. He argued that professional services of doctors fall outside "service" in s. 2(o); that bringing them within it would violate Article 14; that a tort claim needing elaborate evidence could not be tried by a consumer forum; and that hauling doctors before such forums violated Article 19(1)(g). A single judge (Sivaraman Nair J) dismissed the petition, and the doctor appealed.

The Indian Medical Association, A.P. State Branch, separately sought a writ of prohibition restraining all District Forums in the State from entertaining complaints against doctors. Other petitions raised limitation (a claim arising in 1985) and the pursuit of a civil suit and a consumer complaint on the same cause of action at once.

The Court recorded that Government hospitals and doctors who treat free of charge were outside the batch: "We are only concerned with privately managed medical institutions and private doctors who treat patients for consideration."

1. Is a patient who pays for treatment a consumer under s. 2(1)(d)?
2. Do services of private doctors and medical institutions fall within "service" under s. 2(1)(o), or are they excluded as a "contract of personal service"?
3. Does the power to award "compensation" under s. 14(1)(d) exclude damages?
4. Are the consumer forums, by their composition and procedure, unsuitable to decide medical negligence? Can there be two parallel forums?
5. Does the absence of doctors on the forums show that the medical profession was meant to be excluded?
6. If the Act applies to doctors, is it void under Articles 14 and 19(1)(g)?
7. Subsidiary: limitation for stale claims, and whether a claimant may pursue a civil suit and a consumer complaint simultaneously.

The writ appeals and the remaining writ petitions (including the IMA's) were dismissed. Two petitions succeeded on the subsidiary points: one on limitation, and one partly, on election of forum.

Patient as consumer — "hire" and "engage"

The doctors argued that no one "hires" a doctor; doctors are engaged. The Court found "little material difference between hiring and engaging". It held: "When a person consults a doctor by paying fees or receives treatment for consideration, in our view, he is a consumer within the meaning of Section 2(1)(b) of the Act." (The judgment says "Section 2(1)(b)" here; the Act defines "consumer" in s. 2(1)(d) and "complainant" in s. 2(1)(b), as the Court itself notes elsewhere, so read the reference as s. 2(1)(d).) And: "Whether the service for consideration is from an individual doctor or from a medical institution makes no difference."

"Service" is wide

The words "service of any description" show that the list in s. 2(1)(o) is illustrative. "The Act does not exclude services rendered by professionals. They are too numerous to be specified and that was the reason why inclusive definition was adopted." Only two categories are excluded: service free of charge, and service under a contract of personal service.

Contract of personal service versus contract for personal services

Applying the control test from the English cases, the Court held that "it would be absurd to say that the relationship between a doctor and patient is that of a master and servant or an employer and employee." Since "A patient does not exercise any control, much less direct control over a doctor", the relationship is "one of contract for personal services but not contract of personal service." That is not excluded, and "The service rendered for consideration by private medical practitioners, private hospitals and nursing homes must be construed as "service" within the ambit of Section 2(o) of the Act."

The formal holding: "the services rendered by private medical practitioners and private medical institutions for consideration fall within the ambit of service under Section 2(1)(o) of the Act."

Compensation includes damages

"There are no precise contours between the two expressions; they overlap each other". The Court held "that the term "compensation" occurring, in Section 14(1)(d) of the Act comprehends damages also."

Suitability of the forums

The forums follow natural justice and have civil-court powers for summoning witnesses and receiving evidence. Simple complaints must be decided by the forum. But "if complex questions are raised necessitating elaborate evidence of a highly technical nature", the agency "will have little choice but to ask the parties to approach the regular civil court for adjudication."

Whichever forum hears it, the law is the same: "The basic law applicable for adjudicating complaints against members of the medical profession must be the Law of Torts". The Court set out the Bolam test, Whitehouse v Jordan on error of judgment, and the Supreme Court's statement of a doctor's duties in Laxman v Trimbak.

Election of forum

Section 3 makes the Act additional to other law, but "An additional forum is not a parallel forum". A claimant "must choose one of the two forums and not both". Where the claimant in one petition had filed a civil suit on the same cause of action, her consumer complaint was no longer maintainable.

Composition of the forums and the Medical Council Act

It is "impossible in a legislation of the present type to associate representatives of all professions with the adjudicating bodies", so the absence of doctors on the forums shows nothing. The argument based on the Indian Medical Council Act 1956 was "totally misconceived": the Council's disciplinary jurisdiction "does not extend to adjudication of complaints brought against members of the medical profession for the purpose of awarding compensation or damages."

Constitutional challenge

Creating an additional forum "does not amount to invasion of any fundamental right of the members of any profession." The Court found in the Act "neither arbitrariness nor discrimination" against the medical profession, and rejected the challenge under Articles 14 and 19(1)(g).

Limitation

No limitation period was then prescribed for complaints, but a claim already barred cannot be revived: "claims which were barred by 1-7-87, the date when Chapter - III came into force cannot be entertained by any of the consumer redressal agencies under the Act." One petition was allowed on this ground.

A patient who pays for treatment by a private doctor, hospital or nursing home is a consumer, and the treatment is "service" under s. 2(1)(o) of the Consumer Protection Act 1986. The doctor-patient relationship is a contract for personal services, not a contract of personal service, because the patient has no control over the doctor. So it is not excluded from the Act. Consumer forums may award compensation, which includes damages, applying the ordinary law of torts on medical negligence. A complainant must elect between the civil court and the consumer forum.

• Direct question: Are medical services covered by the Consumer Protection Act? Discuss with case law. Use this case for the "contract of" versus "contract for" personal service distinction and the control test.
• Short note: Contract of personal service and contract for personal services. This case gives you the definitions: the first "predicates relationship of master and servant", the second "implies obligation to render specified service by the person offering the service."
• Problem question: a patient at a private nursing home dies after surgery and the husband files a consumer complaint; the doctor says the forum has no jurisdiction. Apply ss. 2(1)(d) and 2(1)(o), the absence of control, and the holding that compensation includes damages.
• Side points worth marks: a claimant cannot pursue a civil suit and a consumer complaint together; and the Medical Council's disciplinary powers do not oust the consumer forum.
• Remember the court: this is the Andhra Pradesh High Court. Say so in your answer.