AS CHANDRAS Vs. UNION OF INDIA
HIGH COURT OF ANDHRA PRADESH
UNION OF INDIA
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M.N.Rao, J. -
(1.)In this batch of cases common questions arise for consideration and so we are inclined to deal with them by this common judgment. Writ Appeal No.1402 of 91 is from the order of our learned brother Sivaraman Nair, J., in W.P.No.15595 of 91 dismissing the writ petition filed by Dr.A.S.Chandra, a private medical practitioner running Sarada Nursing Home in Chirala, Prakasam district. The wife of the fourth respondent received treatment as an out patient between 15-7-91 and 26-7-91 at Sarada Nursing Home for Epigastrium and Chest pain and Nausea. After routine tests were conducted she was admitted as an inpatient on 26-7-91 and operated for Cystectomy, Hystrectomy and Appendectomy. When Laparotomy test was conducted upon her on 15-8-91 it was found that she developed Peritonitis. The nursing home collected Rs.500/- towards medical fee and Rs.200/- each for the anaesthetist and two surgeons, Rs.1,100/- in all. The patient had to be removed to the Government Hospital, Guntur for further treatment; she was admitted in the Guntur Hospital on 25-8-91 and after an operation was performed she died in the Hospital. The fourth respondent filed consumer dispute No.750/91 in the District Forum, Prakasam district alleging that the death of his wife was due to the negligence of the appellant Dr.A.R.Chandra.
(2.)The District Forum issued notice in C.D.C.No.750/91 calling upon the appellant to appear before the Forum on 13-12-91. Challenging the jurisdiction of the District Forum W. P.No.15595/91 was filed by the appellant contending that enquiries relating to professional services rendered by medical practitioners do not fall within the purview of "complaint" under Sec.2(b) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act). The expression "service" as defined by Sec.2(o) of the Act excludes professional services rendered by members of the medical profession. If the services rendered by a doctor for consideration are to be brought within the purview of Sec.2(o) of the Act, it was contended that the same would be unconstitutional being violative of Art 14 of the Constitution. It was also pleaded that the consumer forum is not the proper forum to decide the question since the allegations levelled by the fourth respondent constitute a tortious act, the adjudication of which requires receiving of elaborate evidence and consideration of complicated medical norms. Hauling up of doctors before consumer protection forums in respect of the professional services rendered by them for consideration would be violative of Art.l9(1)(g) of the Constitution. The learned judge negatived all the pleas and dismissed the writ petition holding that the bodies entrusted with the administration of the Act consist of and presided over by persons with matured judicial training. The choice of the personnel itself indicates that there are inbuilt safeguards. Except where services were rendered free of charge or under a contract of personal service, all the other services are comprehended, according to the learned judge by Sec.2(o) of the Act. Merely because the provisions of the Indian Medical Council Act provide for disciplinary action against an erring medical practitioner there is nothing to hold that the jurisdiction of the District Forum is ousted under the provisions of the Act. While dismissing the writ petition the learned judge directed the appellant to raise all the contentions including the point of jurisdiction before the District Forum. Aggrieved by that writ appeal No.1402 of 91 was preferred by the nursing home. In three other writ petitions also the learned judge has taken the same view. Against those writ petitions the aggrieved persons preferred W.A.Nos.997/91, 344/ 91 and 1075/91.
(3.)Writ Petition 7341/91 was filed by the Indian Medical Association, Andhra Pradesh, A.P.State Branch seeking a writ of prohibition directing all the District Forums in the State not to proceed further with the enquiries relating to allegations against members of the medical profession. It was averred that one of the objects of the Indian Medical Association is to protect the interests of the medical science and medical profession in the State of Andhra Pradesh and it is the duty of the Association to maintain the honour and dignity of the noble profession. Several instances came to the notice of the Association that patients after availing of medical treatment from the doctors are approaching the consumer disputes redressal agencies claiming damages and compensation, for alleged deficiencies of the services rendered by the doctors. Neither the district forums nor the State Commission have jurisdiction to entertain such complaints. The service rendered by the doctors is "personal service" outside the purview of Sec.2(o) of the Act and, therefore, the Act does not govern them. Doctors some times have to take "snap decisions" and if their actions are to be questioned on the ground that the services rendered by them were deficient, it would be violative of Art.l9(1)(g) of the Constitution since they would not be in a position to practice their profession.
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