6.1: Consumer Protection Act

Consumer Protection Act — commonly known as COPRA or CPA.

• On November 13, 1995, Supreme Court upheld that medical services are covered under COPRA.

• A patient (consumer) can make a complaint to a redressal forum in respect of defective service if the service has been paid for.

• Defective in the context of a doctor’s service means negligent.

• Deficiency means fault, imperfection, shortcoming, or inadequacy in quality, nature, and manner of performance of medical service rendered by a hospital and/or member of the medical profession.

Purpose of the Act

• The statute has been enacted to provide for better protection of the interests of consumers and for that purpose to make provisions for the establishment of consumer councils and other authorities for the settlement of consumers’ disputes and matters connected therewith.

• The complaint is to be lodged before a duly constituted redressal forum for easy disposal of cases instead of following the ordinary course of law which takes much time and is much more expensive for a poor consumer to get justice.

• It is important to discuss the various provisions of the Act in the true spirit of the legislation to enable one to contemplate its applicability and equip oneself with a grasp on the subject so that as and when the need arises one may invoke the same.

Who is a Consumer?

• Consumer — Any person who buys any goods against consideration or hires or avails any services for consideration, which has been paid or partly paid or promised to be paid.

• It also includes any user of such goods where such use is made with the original buyer’s approval.

• If the goods are purchased for resale or any other commercial purposes, then the buyer is not a consumer and cannot avail of the protection under this Act.

• Any user of goods or beneficiary services has also a legal right and locus standi to initiate action under the Act. On 17 Feb 1994, interpreted the provisions of Act vis à vis medical practitioners as under:

  • The services rendered to a patient by a medical practitioner/ hospital by way of diagnosis and treatment both medical or surgical, would not come within the meaning of ‘service’.

  • A patient who has undergone treatment by a medical practitioner/or hospital by way of diagnosis and treatment, both medical/and surgical, cannot be considered to be a ‘consumer’.

  • The medical practitioner/hospital undertaking and providing paramedical services of any category or kind cannot claim similar immunity from the provisions of the Act and they would fall.

Rights of a Consumer

• As per Consumer Protection Act, a consumer has the following six rights being a consumer of a service obtained by him on payment of charges towards or an item bought by him paying its cost:

  1. Right to safety

  2. Right to choose

  3. Right to information

  4. Right to education

  5. Right to be heard

  6. Right to seek redressal

Procedure for Lodging Complaint and Disposal of Cases

• Complaint — any allegation in writing made by a complainant.

Three Strata for lodging complaints:

1. District Level: A claim for compensation towards damages is fixed to a maximum of Rs 1 lakh at the start which has been enhanced subsequently to Rs 5 lakhs.

2. State Level: It is where compensation is claimed for more than Rs 5 to 20 lakhs, and the complaint should be lodged before the State Commission/State Consumer Dispute Redressal Commission.

3. National Level: When the compensation claimed is more than 20 lakhs; the complaint has to be lodged before the national body.

Proper Procedure

• If there is a defect of goods or deficiency in service then the Consumer or Any Recognized Consumer Association or Central or State Government can file a complaint before the concerned consumer court in the following manner.

  • A complaint has to be filed with any of the three forums, within 2 years from the date of cause of action.

  • Any appeal preferred from the order of the District or the State Commission under the Act must be filed within 30 days of the order.

  • Admission/no admission: If admitted, the opponent is required to file a reply within 30 days. Under Section 23 of the Act, any person, who is aggrieved by an order made by the National Commission whether in its original or appellate jurisdiction, has a right to prefer an appeal to the Supreme Court within 30 days from the date of order.

  • No court fees.

  • Four copies of the complaint are to be filed.

  • The case is expected to be decided in 90 days (maximum in 150 days). No time limit has been laid down by the Act, for the disposal of an appeal or revised petition.

  • Only one adjournment is normally permitted.

  • The presence of lawyers is not compulsory. Both parties can personally present their case. Lawyers can represent them if they so wish.

  • Summons, evidence, principles of natural justice, and the same procedures as applicable to ordinary courts.

  • So ignoring notices, summons, etc. of these courts also invite contempt, fine, imprisonment, etc.

Penalty

• In case of dismissal of frivolous or vexatious complaints—it shall be recorded in writing, dismiss the complaint and make an order that the complainant shall pay a penalty to the opposite party such cost, specified in the order.

• As per the Supreme Court of India on 13 November 1995, the medical services were done on a payment basis and /or also done free to those patients who can afford to pay, both come under the ambit of the Act.

• Consumers in the country have also won another battle against medical malpractice where if he qualifies one medical system and practices another considered a quack and a charlatan.

Acts and Apprehensions in Medical Profession

• Medical practitioners in generally found reasons to be apprehensive for fear of its misuse and the obvious and unavoidable turmoil it may create in the whole profession.

• The reasons for apprehension are:

  • This act will disturb the doctor-patient relationship.

  • Medical practitioners may opt for Defensive Medical Practice.

  • Another apprehension is that the doctor will develop a tendency to assure himself or herself free from the danger of paying compensation by surrendering to the different professional indemnity societies/insurance firms which are bound to crop up to make a good business, taking advantage of this situation.

  • As a consequence of what will happen as described above, the treating physician will charge the patients more than what they charge presently.

How the Doctors in General should Deal with the Problem if the Profession is kept within the Purview of CPA (1986)?

The argument by the medical professionals is that:

• The present law of the land is not deficient in dealing with the erring doctors.

• An erring doctor should be accountable for his or her Negligent Act.

• A Negligent Act of a doctor may come under the purview of Cr PC and IPC and should continue to be dealt with in the same way.

• The civil courts are there to take up less severe negligent cases which can be compensated by money.

• The Medical Council of India and the State Medical Council are there to deal extensively with the misconduct and unethical practice of a registered medical practitioner.

The counterargument by the proact lobbies is that:

• The time consumed in deciding in a court of law concerning payment of compensation to the aggrieved patient is too long and is expensive too.

• The common consumer of medical services should be given some relief by way of providing an alternative redressal forum for their grievances.

• The other argument of this section is that the Medical Council (State and Central) being bodies of the doctors themselves may have some natural pardoning tendency for the faulty doctors.

• Many of the state medical councils are defunct or slow in their action. Justice remains far from the reach of the patients who suffer from the Negligent Acts of the doctor.

• D have expressed various apprehensions and reservations about COPRA, 1986. The majority of those arguments look misplaced, and only a few sound genuine.