C S SUBRAMANIAN Vs. KUMARASAMY

JUDGEMENT

(1.) THE above writ petitions involved for determination certain common and identical issues currently in controversy in the Medical circles and consumer litigation relating to the applicability or otherwise of the provisions of the Consumer Protection Act, 1986 (Central Act 68 of 1986), hereinafter referred to as 'the Act', to facilities made available by Hospitals providing medical care and members of medical profession treating a patient, in the realm of diagnosis and treatment.

(2.) A brief reference to the stage and circumstances of the case which led to the filing of the above writ petitions individually would be necessary to appreciate the nature of the grievance sought to be vindicated by the parties on either side. W.P. No. 1953 of 1992 as the amended prayer stands, has been filed by two Medical Practitioners (husband and wife) for the writ of prohibition prohibiting the respondents from exercising their jurisdiction against the Medical Practitioners on the basis of the complaint filed by the fourth respondent in C.P.O. No. 244 of 1991 on the file of the third respondent District Consumer Redressal Forum. The fourth respondent claims to have approached the petitioners for treatment for stomach pain, that an operation was performed on him, that on account of giving I.V. drips and injections on the right hand continuously for 3 days, three fingers of the right hand have got to be amputated and skin grafting was also necessitated due to the alleged negligence and careless treatment by the petitioners and, therefore, staked a claim for being compensated in a sum of Rs. 99, 500/-. The plea of the petitioners in this writ petition is that Section 2(1)(o) of the Act cannot be claimed to include the services rendered by a private Medical Practitioner, that a Medical Practitioner cannot be condemned for negligence in view of the decision reported in 1954(2) Q.B. 66 (Roe v. Minister of Health and Another), that no Medical Practitioner can be an insurer of effecting a cure and if at all the only remedy of a person aggrieved on account of alleged negligence is the remedy under the General Laws.

(3.) W.P. Nos. 3824 and 3825 of 1993 have been filed by one and the same Medical Practitioner (a) for the writ of Prohibition, prohibiting the National Consumer Disputes Redressal Commission, New Delhi, from proceeding with O.P. No. 16 of 1993 filed by the third respondent against the petitioner and the private hospital concerned, claiming jointly and severally compensation to the tune of Rs. 20 lakhs; and (b) for a writ of declaration, declaring that clause 2(1)(o) of the Act will not include the services of medical practitioner, and as such petitioner is not amenable to the jurisdiction of the Consumer Protection Forum and clause (b) and (c) of Section 10 and clause (b) of Section 16, clause (b) of Section 20 of the Act are invalid. The grievance of the claimant before the forum is that the petitioner performed the surgery Laminectomy L 4 - L 5 and Foraminatomy L 4 - L 5 and due to alleged deficiencies in the services rendered by the petitioner and the hospital the third respondent was put to physical and mental agony apart from monetary loss. The petitioner who claims to be a Professor of Neurosurgery, Madras Medical College and Neuro Surgeon, General Hospital with a standing of 21 years is a consultant at the Hospital in question and would contend that there was no negligence on his part in performing his job and that the services rendered by a private Doctor/Surgeon will not fall within Section 2(1)(o) of the Act. In other respects, the petitioner has raised all and every one the plea raised by the petitioner in W.P. No. 5386 of 1992.