CONSUMER PROTECTION ACT,1986 ISSUES, CHALLENGES & POSSIBLE SOLUTIONS Dr. R. K. Sharma Assistant Professor Dept. of Hosp. Admin. PGIMER Chandigarh Assisted by Dr Jitender Sodhi
PLAN OF PRESENTATION Introduction Milestones Brief description of CPA,1986 Consumer dispute redressal system Landmark judgments of honorable Supreme Court of India CPA cases in which PGI gave expert opinion CPA cases against PGI ;case studies Do’s & Don’ts Take away message Conclusion
INTRODUCTION Consumer Protection Act, 1986 • An important Act in the history of the consumer movement in the country. • It was drafted to provide the better protection and promotion of consumer rights through the establishment of consumer councils and quasi-judicial machinery. • Mile stone in the history of socio-economic legislation and directed towards public welfare and public benefits
HISTORY • Consumer protection during the Mughal times and especially during the time of Khiljis. • British regime (1765-1947), (‘Colonial Era’), Government’s economic polices in India were concerned more with protecting and promoting the British interests than with advancing the welfare of the native population. • Prominent among these were: the Indian Penal code, 1860, the sale of Goods act, 1930, the dangerous drugs act, 1930 and the drugs and cosmetics act, 1940 J.N.Sarkar (1952): Mughal Administration, Calcutta. J.N.Pandey (1992): Constitutional Law of India, Allahabad: Central Law Agency, pp.1-16.
HISTORY • During post independence period, enactment of a number of laws to safeguard the interests of the consumers from various angles such as: • Banking Companies Act,1949 (later called The Banking Regulation Act) to amend and consolidate the Law related to banking matters • Industries (Development and Regulation)Act,1951 to implement the Industrial Policy Resolution of 1948 These were among earlier steps taken by National Government in India in the direction of consumer protection.
UNDERLYING PRINCIPLE • “Thou shalt not injure thy neighbor • “Neighbor principle”- Lord Atkins (1932) • Liability for negligence is based on a general public sentiment of moral wrong doing for which the offender must pay • Neighbour : Persons who are so closely and directly affected by my act, that I ought to have them in my mind while performing those acts (Donoghue Vs Stevenson‘ 32)
Various provisions providing protection to the consumer against adulterated and substandard articles were made available, like • Indian Penal Code 1860 • Criminal Procedure Code, 1908 • Sales of Goods Act, 1930 • Indian Contract Act, 1972 Cont…….
Prevention of Food Adulteration Act, 1954 Monopolies and Restrictive Trade Practices Act, 1969 Standard of Weights and Measures Act, 1976 Motor Vehicle Act,1988 But very little could be achieved in the area of consumer protection Contd..
In order to achieve these objectives, the Consumer Protection Bill, 1986 was introduced in the Lok Sabha on December 5th 1986. The motive of CPA 1986 was to ensure the better protection of the interest of consumers from exploitation and for the purpose to make provisions for the establishment of Consumers Councils and other authorities for the settlement of consumer’s dispute and for matters connected therewith.
FACTORS RESPONSIBLE FOR ENACTMENT OF ACT Industrialization Urbanization Malpractice such as Adulteration Shortage or Non availability of essential goods at reasonable price. Lack of control on the quality of the consumer goods. Global markets and open economie
FEATURES OF CPA1986 CPA(1986) was enacted for the promotion and prevention of the consumers- • Right of redressal • Right to information • Right to choose • Right to be heard • Right to safety
SALIENT FEATURES: HEALTH CARE A doctor, when consulted by a patient owes to him: • Duty of care • Duty of administration of most appropriate treatment. A breach of any of these duties gives the right of action for medical negligence to the patient. Contd...
SALIENT FEATURES: HEALTH CARE The main relief provided under the Consumer Protection Act is compensation for the damage caused due to deficiency in service, which in the case of medical services is negligence Three elements for obtaining compensation: That there was a legal duty of providing care. Violation of that duty That this breach resulted in damage, injury/death
MEDICAL NEGLIGENCE • Means a failure on the part of the doctor by not acting in accordance with medical standards in vogue which are being practiced by a prudent doctor practicing in the same profession. • Unexpected developments, complications and risks can not be considered as negligence, if these have been explained to the patient. • Prudent: exercising good judgment or common sense.
COMPLAINT CAN BE BROUGHT AGAINST: Medical services provided at Government/Non-Government hospitals, where fees are required to be paid by some and others are provided free service. When the employer or insurance company bears the expenses of medical treatment. ESI hospitals/SAIL or any other hospital/clinic run by an industrial house or company for the benefit of their employees and members of their families.
EXEMPTIONS UNDER THE ACT Non Government hospitals/ Government hospitals where all patients are given free service. The question about excessive fee of doctor. For violation of medical ethics. When there is no evidence, documents, receipts etc and no affidavits to support your complaint.
EXEMPTIONS UNDER THE ACT Where case has already been filed / decided in a civil court for the same cause of action. Services provided by CGHS dispensaries /hospitals etc where some token charges, such as membership fee/registration fee is charged but treatment and medicines are provided free .
WHEN TO FILE A COMPLAINT When anyone feels or is able to prove : That the patient has been made to pay the fees for a service not actually provided When there has been a deficiency in the medical service provided as breach of duty described above.
NO COMPLAINT CAN BE MADE FOR ALLEGED EXCESSIVE FEES REGARDING CONSULTATION,OPERATION,DIAGNOSTIC TEST,BED CHARGES ETC,AND FOR ANY OTHER CHARGES FOR SERVICES ACTUALLY PROVIDED
WHO CAN FILE A COMPLAINT A consumer for himself and/or for his beneficiary including parents, guardians for minor wards and children etc. No fees. The complaints can be either hand written legibly or typed, but preferably typed. It may be in a local language. The complaint can be submitted in person, through agent/lawyers, or by registered post. documentary support is a must
CONSUMER DISPUTES REDRESS FORUMTHREE TIER SYSTEM DISTRICT LEVEL STATE LEVEL Total Three members Retired District Judge –president One lady Compensation up to 20 lacs Total Three members Retired High Court Judge -president One lady Compensation > 20 lakh to 1 crore Appeal against district forum of state
CONSUMER DISPUTES REDRESS FORUMTHREE TIER SYSTEM NATIONAL LEVEL Total Five members Retired Supreme Court Judge –president One lady Compensation > 1crore Appeal against state forum Revision orders
PROVISIONS LIMITATION PERIOD APPEALAGAINST THE DECISION The complaint needs to be lodged with in two yrs from the day of cause of action Exception can be made but valid reason to be documented With in 30 days Certain amount of compensation awarded is required to be deposited
RELIEFS GRANTED BY CONSUMER COURTS Refund of the charges paid. To award compensation for any loss or injury suffered due to the negligence of the opposite party / Nursing home. To rectify the deficiency in services, and To compensate the financial losses occurring to the affected party (e.g; lawyer fees, loss of wages in case of earning member and potential future earning)
THECONSUMER PROTECTION ACT- AMENDMENT-2011 Any act of Omission or commission which causes any damage to the consumer on account of negligence or consciously withholding of relevant information to the consumer. The deficiency of service as described CPA(original)1986 Deficiency means any fault, imperfection, shortcoming in quality, nature and manner of performance which is required by or under any law for time being in force or has been undertaken to be performed by person in pursuance of contract or otherwise in relation of any service. 8 PLUS
CASE STUDIES LANDMARK JUDGMENTS OF SUPREME COURT OF INDIA
IMA(PETITIONER) VS V.P. SHANTHA & OTHERS (RESPONDENT) (DATE OF JUDGMENT:13-11-1995) Issues Raised Whether the services provided by a doctor to a patient fall under the ambit of ‘service’ as defined under section 2(1)(0) of this act. Contd….
Judgment of Supreme Court The Honorable court directed that services provided to a patient by a doctor 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. The detailed inclusion and exclusion criteria's framed in this judgment are discussed earlier(slide no- 11&12)
JACOB MATHEW(PETITIONER) VS. STATE OF PUNJAB(RESPONDENT) (DATE OF JUDGMENT-5-8-2005) Issues Involved The patient died due to the carelessness of doctors and nurses and non availability of oxygen cylinder and the empty cylinder was fixed on the patient. An FIR was registered under Section 304A/34 IPC, against the two doctors. Both of them filed a revision in the Court of Sessions Judge and subsequently in High Court for quashing of the FIR but the revision was dismissed. Contd….
GUIDELINES ISSUED BY SUPREME COURT The investigating officer before proceeding against the doctor accused of negligence needs to obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical discipline A doctor accused of negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). A doctor may be liable in a civil case for negligence.
MARTIN F. D’SOUZA (APPELLANT) -VS- MOHD. ISHFAQ (RESPONDENT) (DATE OF JUDGMENT:17-2-2009) Issues Involved Patient filed a case in National Commission that he was suffering from renal failure and the doctor was negligent in prescribing Amikacin (Contraindicated) which resulted in hearing impairment. Patient alleged that it was wrong to prescribe Amikacin . Patient was awarded Rs 4 lacs compensation by the commission. The respondent went to Supreme court on appeal against this decision.
GUIDELINES ISSUED BY SUPREME COURT Whenever a complaint is received against a doctor or hospital by the Consumer Forum (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital the matter must be referred to a competent doctor or committee of doctors, and if prima facie a case of medical negligence is established ,only then the notice be issued. Contd…
GREAT RELIEF TO DOCTORS The police officials were warned not to arrest or harass doctors except as per the criteria laid down in Jacob Mathew case, otherwise they will have to face legal action.
V.KISHAN RAO-VERSUS-NIKHIL SUPERSPECIALITY HOSPITAL (DATE OF JUDGMENT: MARCH 2010) Issues Involved Patient counsel alleged that their patient died due to negligent treatment Patient was treated for typhoid fever despite the fact that she was suffering from malaria. Contd….
Appellant won the case in Distt. Forum and they were awarded compensation of Rs 2 lacs. Respondents approached state and national commission which quashed the orders of Distt. Forums as no expert opinion was taken to prima facie establish the medical negligence(Ref: Martin .F.D’Souza Judgment) Contd…..
DECISION OF SUPREME COURT Modified the decision given in Martin.F. Dsouza case Directed that the decision of sending cases for prima facie evaluation are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence.
PROCEDURE FOLLOWED AT PGIMER • The case files are received at Establishment branch of Medical Superintendent Office from various consumer forums • The case is processed and a committee of the concerned specialists is constituted to give expert opinion pertaining to case in a stipulated period. • When the comments are ready the same are sent back to the respective consumer forums.
Total fifty one case files received over a period of time from different consumer forums were studied (Nov’09-Dce’10) It was observed that there is increase number of cases being referred to PGI after the judgment of Martin.F.D’Souza case