Consumer Protection Act 2019 has repealed the earlier 1986 Act in which medical services were read in as service by the Hob'ble Supreme Court in IMA vs V P Shantha, 1995

The Consumer Protection Act was enacted in 1986 to protect the right of consumer to purchase or hire quality goods and services. Interpreting the provision defining 'service' in the Act, the Hon'ble Supreme court ruled that though not so specified, the Parliament's intention was to include medical services in it. The Hon'ble Supreme Court, analyzed and interpreted Sec. 2(1)(o) of the Act in IMA vs V P Shantha, 1996, to read medical services in the Act.

The Sec. 2(1)(o) the 1986 Act was:
"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;"

The Hon'ble Court considered the provisions in the Sec 2(1)(o) in its three parts.

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 of 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.

Interpreting its main part '"service" means service of any description which is made available to the potential users', the emphasis was placed on 'any' to read in the intention of the Parliament to include medical services also, especially in the light of Sec.2(1)(d) that defined 'consumer' as 'any person' who hires or avails any services for a consideration. Here too the emphasis was on 'any' to reflect the liberal intent of the parliament. Medical Services were read into Sec. (2)(1)(o)

The judgment:"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 statue 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."

Considering the inclusionary part of Sec. (2)(1)(o), "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" – it was interpreted that the intention for omission of medical services from the list was that the list was to name some services as examples and was not exclusionary.

"The inclusive clause succeeded in widening its scope but not exhausting the services which could be covered in earlier part."

Now consider in this context the passage of the CPA Act 2019 that repealed the earlier 1986 Act.

The consumer protection Bill 2019 was introduced in the Lok Sabha on 8th July 2019 by the Minster of Consumer Affairs, Food and Public Distribution, Mr Ram Vilas Paswan. It was passed by Lok Sabha on 30th July 2019 with high controversy on the issue of non-inclusion of healthcare in the 2019 Bill. The word" healthcare" was there in Section 2(42) of the CPA bill 2018, after the word " telecom". 'Health care' was included in the inclusionary part of Sec. 2(42) in the 2018 Bill passed by LOK SABHA and introduced in the Rajyasabha. Why it has been excluded from the redrafted 2019 Bill, asked the members.

The reason stated by Minister Mr .Ram Vilas Paswan about removing healthcare, while replying to the debate is that many members of parliament do not want healthcare in this Bill. Reason behind this is that if the doctors are included in CPA then they become more defensive due to fear of CPA and he quoted the example of Headache for which how will doctor treat the patient in fear of CPA

If a patient goes to doctor for simple complaint and due to fear of CPA, doctor may advice many investigations before prescribing a simple painkiller and the treatment gets delayed and costly also. The inclusion of Health Care in Sec. 2(1)(o) of the Act by the judgment in IMA vs V P Shantha, 1996, it was pointed out by the members has resulted into great distortion of practice of medicine. Hence, it was excluded from the 2019 Bill when it was redrafted, stated the minister.

Later, the bill which was passed in Rajya Sabha on 6th August 2019. It does not contain the word healthcare in section 2(42).

And the bill received assent from President Ram Nath Kovind on 9 th August 2019 and notified in Gazette of India on the same date.

This reveals that the intention, now changed, of the parliament is to keep healthcare professionals out of the ambit of CPA. The presumption of intent of the legislators to the contrary, in the 1986 Act, by the Hon'ble Supreme Court in IMA vs V P Shantha, thus stands changed in the 2019 CPA Act.

The statement of the Hon'ble minister piloting the CPA 2019 bill is admission, on the basis of experience of 22 yrs (1996 – 2018) of placing medical services under CPA, that it has not been beneficial to the patients. On the contrary, it has resulted into great harm to the patients at large, and a deleterious effect on the practice of medicine. In the light of the parliamentarians' perception medical services, were excluded from the CPA 2019.

Conclusion: On the basis of aforesaid facts and reasoning, the medical services, having been expressly removed from Sec.2(42) of CPA 2019, it is submitted, the medical profession is no more covered under the Consumer Protection Act 2019.

These appeals, special leave petitions and the Writ Petition raise a common question, viz., whether and, if so, in what circumstances, a medical practitioner can be regarded as renondering '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 the National Consumer Disputes Redressal Commission [hereinafter referred to as 'the National Commission'].

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;"

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 of 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.

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 statue 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 instalments or payments on a contract or engagement already made." In other words service which is not only extended to actual users but those who are capable of using it are covered in the definition. The clause is thus very wide and extends to any or all actual or potential users.

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] 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] 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 matter 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 hospitals/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.

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).

CPA 2019
consumer means any person who:

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. hires or avails of any service 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 service other than the person who hires or avails of the services for 6 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, but does not include a person who avails of such service for any commercial purpose.

2(42) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

The "healthcare "is not included in CPA,2019.

The reason behind this thought is:

1. Constitution of India is supreme law of our country. There are separation of powers as per our Constitution where:
   
   1. LEGISLATORS enact the acts
   2. EXECUTIVE implement the rules and
   3. JUDICIARY interpret these acts
   The powers are separated in these three pillars.
   Consumer protection act 2019 is an act of Parliament of India .It repeals and replaces the consumer protection act 1986.
   
   As this is the new act and not amendments, so it should be interpreted in a fresh way by the judiciary by examining the intention of parliament behind enacting this new act.
    
2. The consumer protection Bill 2019 was introduced in the LokSabha on 8 th July 2019 by the Minster of Consumer Affairs, Food and Public Distribution ,Mr Ram Vilas Paswan .It was passed by Lok Sabha on 30th July 2019 with high controversy on the issue of inclusion of healthcare . The word" healthcare" was there in section 2(42) of the CPA bill 2018 which was passed in LOK SABHA after the word " telecom".
   
   After that ,the bill which was passed in Rajya Sabha on 6th August 2019, do not contain the word healthcare in section 2(42).
   
   The reason stated by Minister Mr .Ram Vilas Paswan about removing healthcare is that many members of parliament do not want healthcare in this Bill. Reason behind this is that if the doctors are included in CPA then they become more defensive due to fear of CPA and he quoted the example of Headache for which how will doctor treat the patient in fear of CPA
   
   If patient goes to doctor for simple complaint and due to fear of CPA, doctor may advice many investigations before prescribing a simple painkiller and the treatment gets delayed and costly also, so the healthcare is struck off from the new Bill.
   
   And the bill received assent from President Ram Nath Kovind on 9 th August 2019 and notified in Gazette of India on the same date.
   
   This Proves that the intention of parliament is to keep healthcare professionals out of the ambit of CPA.
    
3. Many leading consumer rights bodies who are dealing with interests of consumer are worried after removal of word healthcare from the Bill and they are opposing it ,this also support that healthcare is out of CPA 2019.
    

To conclude this Analysis
I wish to say,"UNITY OF DOCTORS "is today's need to stay out of CPA as FATE OF DOCTORS is in the hands of "MY LORD" , how they interpret this new act as LEGISLATORS showed their clear intention and now it is the work of judiciary to interpret it constitutionally.

My Lord , "SAVE THE DOCTORS" and REVIEW your judgement of IMA Vs V P SHANTHA to save the patient as well as medical profession.

Written By:

1. Dr.Shri Gopal Kabra, MBBS,LLB, MSc, MS(Anatomy), MS(Gen. Surgery)
   15, Vijay Nagar, D-bloc, Malviya Nagar, Jaipur-302017
   Ph no: 8003516198
2. Dr. Manju Rathi, MBBS MD (Gold medallist)
   LLB LLM (Gold medallis