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Services by doctors, medical professionals covered by Consumer Protection Act, 2019: Bombay High Court

Services by doctors, medical professionals covered by Consumer Protection Act, 2019: Bombay High Court

Written By – Stuti Agarwal

The Bombay High Court recently held that services performed by healthcare service providers in lieu of fees/charges would fall within the purview of the Consumer Protection Act, 2019

The Bench was adjudicating upon a Public Interest Litigation (PIL) petition moved by Medicos Legal Action Group, a registered trust in Chandigarh seeking a declaration from the court that services performed by healthcare service providers would not be governed by the Consumer Protection Act 2019 and further seeking the Court’s leave to direct all consumer for a to not register complaints filed under the 2019 Act against healthcare service providers.

The Petitioner, represented by advocates Ashish Chavan, Adithya Iye and Kunal Shinde, put forth the following arguments

  • Consumer Protection Bill, 2018 preceding the 2019 Act had led to exclusion of ‘healthcare’ from the definition of the term ‘service’ as defined in the bill. Section 2(42) of the 2019 Act thus did not include ‘healthcare’ in the definition of ‘service’
  • Hon’ble Minister for Consumer Affairs, Food and Public Distribution, while presenting the bill on the floor of the house had stated that healthcare had been deliberately kept out of the 2019 Act. The petitioner argued that the above statement indicated the parliamentary intent of not including ‘healthcare’ within the definition of ‘service

The Bench of C.J. Dipankar Dutta and G.S. Kulkarni made the following observations

  • The bench compared the term ‘service’ as defined under section 2(1)(o) of the 1986 Act and in section 2(42) of the 2019 Act and found no material difference between the two, except for the inclusion of ‘telecom’ in the 2019 Act. The bench invoked the precedent of Indian Medical Association v. V.P. Shantha & Ors.(1996) which had read ‘healthcare’ into section 2(24) of the 1986 Act.
  •  The court rejected the contention that the statements made by the Minister were indicative of any legislative intent. The Court observed that, “If at all the Parliament while repealing and replacing the 1986 Act with the 2019 Act had intended to give a meaning to the term “service” different from the one given by the Supreme Court, such intention ought to have been reflected in clear words by a specific exclusion of ‘health care’ from the purview of the 2019 Act”. The Bench further stated, “While construing a statute, what has not been said is equally important as what has been said.”

It should also be noted that the Consumer Protection Bill has separate Inclusion and Exclusion lists. While the term ‘healthcare’ had been removed from the inclusion list, it was not placed under the exclusion list. Furthermore, the use of the phrase ‘but not limited to’ keeps section 2(1)(o) open to judicial interpretation.

The removal of “healthcare” from the list of services would mean the consumers can no longer approach a consumer court to address issues of medical negligence or file complaints against doctors. Aggrieved persons could still however approach the high courts or Supreme Court, seeking penalty or compensation for violation of Right to Life or any other fundamental right.

The Bench dismissed the instant petition, labelling it as “a thoroughly misconceived Public Interest Litigation” and imposed costs amounting Rs. 50,000 on the petitioner, to be paid to The Maharashtra State Legal Services Authority within a month from date failing which such sum shall be recovered as arrears of land revenue.

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