MEDICAL SERVICES AND CONSUMER JUSTICE IN INDIA: ROLE OF JUDICIARY FOR ADOPTING A BALANCED APPROACH

Transcription

1 Medical Services and Consumer Justice in India: Role of Judiciary for MEDICAL SERVICES AND CONSUMER JUSTICE IN INDIA: ROLE OF JUDICIARY FOR ADOPTING A BALANCED APPROACH Mushtaq Ahmad Dar Sr. Asstt. Professor (Law), Directorate of Distance Education, University of Kashmir Srinagar, ( haddimushtaq@yahoo.co.in). Abstract: The Consumer Protection Act is a milestone in the history of social welfare legislations for the protection of rights of consumers in India. The Act has been hailed as a Magna Carta for the benefit of consumers. This is indeed a very unique and highly progressive piece of social welfare legislation. It is applicable to all kinds of services and negligent doctors cannot claim immunity for being members of a noble profession. There is no justification in a welfare state to exonerate a doctor or a medical practitioner from liability from negligence while serving in a government hospital or nursing home simply on the ground that his salary is being paid by the government and the user of such services pays no charges. What is important is not the consideration, but the way of conducting and discharging duties in such a manner as would be expected from a prudent contemporary in a similar situation having access to similar facilities and in know of the principles of such a practice in general. If the medical professional fails to keep up to these standards in a particular case, it would be a case of negligence entailing liability of the professional person under civil and criminal laws. In this article an attempt has been made to discuss the applicability of Consumer Protection Act to medical professionals working in government and private hospitals, importance of consideration in such contracts and the liability under criminal law. The role of consumer disputes redressal agencies, High courts and the Supreme Court for the effective implementation of this social welfare legislation for protection of consumers interest vis-a-vis medical professionals would also be evaluated. Why not to safeguard the interests of both patients as well as doctors? Keywords: Medical Services, Consumer Protection Act, Fee and Tax, Negligence, Private & Govt. Hospitas, Judicial Approach. I J M T P : 7(1-2) January-December

2 Mushtaq Ahmad Dar 1. INTRODUCTION The concept of consumer as it is understood in modern times was likewise unknown. Legal process was often used by the rich to exploit the weak and helpless. So nothing substantial had been done under the rule of Great Britain for the protection of the then Indian buyers. With the adoption of the Constitution in November, 1949 the aspirations of the people of India found an explicit expression in the preamble, the fundamental rights and the directive principles of State policy. The Constitution provides for few safeguards for the benefit of its citizens. Under Article 21, which guarantees right to life, denial of an essential service by the State might amount to violation of this right. It is now well established that under Article 14 of the Constitution, no State monopoly could be arbitrary in its dealings with the consumers. Consumer justice is a part of socio-economic justice as enshrined in Constitution of India. In 1986 Government of India took a step of seminal importance by enacting Consumer Protection Act 1. The C.P. Act is a milestone in the history of socio-economic legislations to promote and protect the rights of the consumers by providing cheap and speedy consumer disputes redressal system. To bring justice outside the doors of a class of litigants designated as consumers, the C.P Act provides for setting up of quasi-judical bodies at the District, State and National level 2. These bodies will observe the principles of natural justice and have been empowered to give relief of specific nature and to award wherever appropriate, compensation to consumers 3. It also envisages establishing of Consumer Councils at the Centre, State and in Union Territories. The Councils are expected to promote and protect the rights of the consumers. The C.P Act is applicable to both consumers of goods as well as services 4. For the purpose of C.P Act, service has been defined to mean service of any description which is made available to potential users 5 and makes it clear that it takes in its sweep any service including the services rendered by doctors and other professionals and not only the kinds of service mentioned therein under section 2(1)(0) of the C.P. Act. The definition is inclusive and not restrictive. The only exclusion being service 2 I J M T P : 7(1-2) January-December 2015

3 Medical Services and Consumer Justice in India: Role of Judiciary for rendered free of charge and personal service. The outmoded concepts of hiring and payment of consideration have robbed the consumers of the benefit of this beneficial piece of legislation 6. In a social welfare state like India, services are provided to the people free of charge. This should not provide license to the provider of services to cause injury or loss to the consumers. Such discrimination in applying the C.P. Act to the medical practitioners and hospitals which are private and excluding government hospitals and doctors from its ambit is not justified. Financial constraints should not come in the way of providing medical help to the needy. Moreover, in cases falling under C.P. Act the test of liability continues to be negligence which need not occur only in those cases where services are rendered on payment but may take place in free services as well. Other than civil liability under the Consumer Protection Act, medical professionals can also be prosecuted for criminal negligence under the provisions of the Penal Code, It is in this backdrop that an attempt is made in this paper to analyze the relevant legal provisions of C.P. Act and judicial interpretations thereof about the requirement of consideration in medical services provided by private and government hospitals to consumers and liability for criminal negligence. The role of consumer disputes redressal agencies, High courts and the Supreme Court for the effective implementation of this social welfare legislation for protection of consumers would also be evaluated. The role of the Supreme Court in adopting a balanced approach for protecting the interests of consumers and medical professionals would also be highlighted in view of the recent guidelines. 2. PAID SERVICES VERSUS FREE SERVICES It is only the recipient of services for a consideration who is entitled to avail of the remedies provided by the C.P. Act in the event of any deficiency in them. The provision of consideration is therefore, a basic requirement for invoking the Jurisdiction of the C.P. Act, Under C.P. Act it is not only goods but also the services made available to potential users for the purposes of consumer interest In the present I J M T P : 7(1-2) January-December

4 Mushtaq Ahmad Dar dynamic world, it is not possible that we make available the services without charging any fee or without securing the commercial viability of a service- oriented organisation. This does not mean that we generate profits by exploiting the users or prefer profiteering. Indeed our emphasis should be on the generation of profits through consumer satisfaction. The C.P. Act tries to regulate any deficiency in the services 7. In case of deficiency, it may be required to be compensated by award of the Just equivalent of the value or damages for loss. Therefore, for the purposes of C.P. Act, service has been defined to mean service of any description which is made available to potential users 8 and makes it clear that it takes in its sweep any service including the services rendered by doctors, advocates, engineers and other professionals and not only the services mentioned in the definition. The definition has indeed been kept very wide and only two types of services have been kept out of the ambit of this Act. They are, (i) services rendered free of charge and (ii) services rendered under a contract of personal service. Though the dictionary meaning implies that the consideration may be in money or money s worth i.e., in kind, but the definition of consumer in clause (d) of section 2 (1) states that the price of the goods or the hire charges for the services must be paid or promised or partly paid or partly promised. The view that any person buying the goods or hiring the services should pay money and money only in order to be termed as a consumer 9 will be against the letter and spirit of the C. P. Act which has radically reformed the traditional concept of sale and has brought revolutionary changes in the area of consumer transactions 10. It is submitted that in order to avail the benefit of the C.P. Act the word consideration should be so interpreted as to cover the meaning given to it under section 2 (d) of the Indian Contract Act, Each and every provision of the C. P. Act should be so interpreted as to give full protection to the users of goods and services. If not, the traders will escape the liability on the ground that money was not the consideration for such goods and services 11. The C.P. Act is not only applicable to the goods but also services that are made available to potential users in our day-to-day life. 4 I J M T P : 7(1-2) January-December 2015

5 Medical Services and Consumer Justice in India: Role of Judiciary for Do the taxes paid by the citizens constitute consideration? The National Commission in Consumer Unity & Trust Society v. State of Rajasthan 12, held that the persons who avail themselves of the facility of medical treatment in government hospitals are not consumers and the said facility offered in government hospitals cannot be regarded as service rendered for consideration. It was argued before the apex commission that the taxes paid by the citizens should be treated as a consideration for the services rendered by the government through its doctors. After all, doctors are paid from the consolidated fund of the government which in fact is the revenue collected from the citizens of India. In other words, do the taxes paid by the citizens constitute consideration for the services ostensibly rendered gratis by the state to its citizens? Relying upon the decision of the apex Court 13, the National Commission held that the legal position must now be taken to be well settled that unlike a fee, a tax in its true nature is a levy made by the State for the general purposes of government and it cannot be regarded as payment for any particular or special service. The commission further held that it is undoubtedly true that the government in a welfare state is under a duty to provide various forms of facilities to citizens and the expenditure incurred thereon will have to be met out of the consolidated fund of the state, it cannot be said that a tax levied for the general purposes of the state constitutes consideration for any specific facility, benefit or service provided by the state 14. In case of fee levied there is a definite correlation between the services rendered and the levy imposed. This is wanting in case of tax. Whereas tax is for general purposes, fee is for specific purposes and is quid pro quo for that purpose. This distinction is important because only fee as distinct from the tax can be deemed to be consideration for the special service or benefit rendered 15. Therefore, the contention that the taxes paid by the citizens should be treated as a consideration for the services rendered by the government through its doctors was outrightly rejected by the National Commission. I J M T P : 7(1-2) January-December

6 Mushtaq Ahmad Dar 3. CONTROVERSY AND CONFLICTING OPINIONS For any negligent action the result is loss and no sin is greater than criminal negligence. The decision of the National Commission in CUTS case (supra) was not considered in consonance with the spirit of the C.P. Act by the consumerists and voluntary organizations. Since people lack resources for undergoing treatment in private hospitals, they have no option but to avail of services provided in Government hospitals or by charitable institutions free of charge 16. Thus one of the objectives to provide cheap remedy to consumers was frustrated by this interpretation. This is unfortunate that at one stroke the commission had provided exemptions to a vast number of governmental acts from liability under the C.P. Act. This decision has sounded the death knell of emerging consumer jurisprudence in the country 17. The above decision was criticized by various consumer activists and organizations for the reason that in a welfare state the taxation performs an altogether different role. The amount collected is used not only on meeting expenses on traditional function of the government but also on social welfare functions. It was in this perspective that the problem had to be approached and resolved. Ministry of Civil Supplies and Public Distribution constituted a high power Working Group on in 1991 to consider the various suggestions to make the C.P. Act and MRTP Act more effective. The Working Group Constituted to suggest suitable amendments to the C.P. Act recommended: 18 Some services like health services in hospitals run by government and local bodies and services provided on mandatory basis by local bodies, housing schemes need to be brought within the purview of the Act as they affect the lives of the citizens. However, the decision of the National Commission in CUTS case was followed in Mable Roosevelt v. State of KeraIa 19 and also by the State Commissions of Delhi, 20 Haryana 21, Karnataka 22, Maharashtra 23 and Punjab 24. Following the ratio of this case various state commissions in a series of cases 25 made it clear that consideration 6 I J M T P : 7(1-2) January-December 2015

7 Medical Services and Consumer Justice in India: Role of Judiciary for must be direct and services rendered free of charge do not fall within the ambit of the C.P. Act. Though the implication of the above cases is that services rendered to the patients in state run hospitals are not governed by the provisions of the C.P. Act, consumer organisations throughout the country protested against it and demanding accountability also on the part of the government hospitals and doctors. They are of the view that even though a consumer does not pay directly for the medical services in the government hospitals, the hospitals are run by the tax-payer s money and that doctors are paid salaries out of the money paid by the citizens in the form of tax 26. The other controversy was regarding private hospitals and nursing homes providing services for consideration. If a doctor makes available his services to potential users for a consideration there is no reason why such services shall be excluded from the definition of service under the C.P. Act. This second controversy concerns applicability of the C.P. Act to private doctors, hospitals and nursing homes which, too, has started primarily due to the conflicting decisions pronounced by some of the State Commissions. In Gulam Abdul Hassan v. Katta Pulbiah Choudar 27, the main issue involved was whether the services made available by a doctor for consideration to a potential user could come under the definition of the term service under the Act? The Andhra Pradesh State Commission has taken the lead and answered the question in the affirmative and. This decision of the Andhra Pradesh State Commission was followed by the Kerala State Commission in Vassantha P Nair v. M/S Cosmopolitan Hospitals (p) Ltd. 28, where the commission made the significant observation on the doctor-patient relationship in the following words: The relationship between a doctor and a patient is not a contract of personal service, but a contract of professional service where a patient is admitted in a hospital and put in charge of a doctor, what really takes place is hiring of the services of the doctor by the patient. Where the petitioner s wife was treated by the respondent doctor free of charge as it was not unusual for a doctor to treat family I J M T P : 7(1-2) January-December

8 Mushtaq Ahmad Dar friends free of charge. Following the above decision the Tamil Nadu State Commission 29 held that the relationship between a medical officer and a patient was not a contract of personal service, but a contract of professional service falling within the ambit of the 1986 Act. Though no relief could be given to the appellant in this case due to absence of evidence. However, the Commission held that the relationship between a doctor and patient was not a contract of personal service. 30 The National Commission in Cosmopolitan Hospitals v. Vassantha P. Nair 31 had also endeavoured to set at rest, at least for the time being, the controversy concerning the governance of the private medical practitioners, hospitals and nursing homes by the C.P. Act. It affirmed the decisions of the State Commissions of Tamil Nadu, Andhra Pradesh and Kerala. Where a patient alleged that after the operation he developed certain complications but despite his repeated visits to the doctor concerned, he was not rendered any post-operative care, thus putting his life into danger and causing him immense mental and bodily suffering. Accordingly, the doctor was asked to pay to the complainant, a sum of Rs. two lacs by way of compensation for causing mental distress and physical suffering 32. Though the decision of the National Commission in Cosmopolitan Hospital s case 33 evoked strong criticism from the whole medical fraternity, yet it was also followed by a large number of similar decisions by various State Commissions where medical professionals have been held guilty of professional misconduct and negligence 34. Though the National Commission in Cosmopolitan Hospital case 35 has authoritatively resolved the controversy regarding the applicability of the C.P. Act to members of medical profession whose services are hired for consideration, the matter was still being agitated by members of the profession before High Courts and the Supreme court. It was argued on behalf of the medical profession that the dichotomy of private hospitals and government hospitals was not justified. Such discrimination in applying the C.P. Act to the medical 8 I J M T P : 7(1-2) January-December 2015

9 Medical Services and Consumer Justice in India: Role of Judiciary for practitioners and hospitals which are private and excluding government hospitals and doctors from its ambit is violative of Article 14 of the constitution. They were demanding protected status to medical services. The Division Bench of Madras High Court considered these arguments in Dr. C. Subramanian v. Kumarsawamy and Others 36, the court held that the services rendered by a medical practitioner or a hospital by way of diagnosis and treatment, both medicinal and surgical would not come within the definition of service under section 2(1)(o) of the C.P. Act and the patient or his representativesin-interest will not fall within the definition of consumer in section 2(1)(d) of the Act. Legal luminaries raised doubts about its correctness and wisdom. This judgment shook the consumers and consumer bodies throughout the country. Unsatisfied with the reasoning furnished by the Madras High Court for its conclusion the issue was brought before the apex court in Indian Medical Association v. V. P. Shantha and Others 37. The Supreme Court overruled the Madras High Court judgment 38, upheld the judgment of the National Commission in M/S Cosmopolitan Hospitals v. Smt. Vassantha P. Nair 39 and removed all doubts that were entertained in respect of inclusion or exclusion of medical services within the ambit of the C.P. Act. The court refused to grant a protected status to medical services and treated them at par with other services of consumer nature. The Supreme Court 40 while diverting to the second part of the exclusionary clause which relates to services rendered free of charge said that the doctors and hospitals who render services without charge would not fall within the ambit of service under section 2(1)(o) of the C.P. Act. This constitutes the first category of service. The payment of a token amount for registration purposes would not alter the position. In the second category where the doctor or the hospital renders services on payment basis to all the persons they would fall within the ambit of section 2(1)(o) of the C.P. Act. In the third category where service is provided to some patients I J M T P : 7(1-2) January-December

10 Mushtaq Ahmad Dar belonging to poor class but the bulk of service is rendered to the patients on payment basis, the expense incurred for providing free service being met out of the income for service rendered to the paying class, such services to paying patients undoubtedly fall within the ambit of section 2(1)(O) of the C.P. Act. In as far as patients who receive medical services without charges from the third category of hospitals or doctors the services are not covered by the exclusionary clause of section 2(1)(O) of the C.P. Act. The reason being that all persons who avail the services by doctors and hospitals of this category are required to be treated on the same footing irrespective of the fact that some of them pay for the service and other avail the same free of charge. The expenses involved in such free services are met out of the charges recovered from paying patients by doctors and hospitals working on commercial lines. In a situation the persons belonging to poor class, who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the paying class. The beneficiaries fall within the scope of consumer under section 2(1)(O) of the C. P. Act. 41 Commenting on the status of beneficiaries under C.P. Act the National Commission 42 held that the words in pursuance of a contract or otherwise in section 2(1)(g) makes it amply clear that a privity of contract is not needed for a claim to be made under C.P Act, so long as there is hiring or availing of services for consideration. In cases falling under the C.P. Act, the test of liability continues to be negligence which need not occur only in those cases where services are rendered on payment but may take place in free services as well. The ruling of the Supreme Court that the medical services rendered by doctors in government hospitals or nursing homes free of charge do not fall within the definition of service does not convince in logic. After all under C.P. Act it is not only goods but also the services made available to potential users for the purposes of consumer interest 43. It is submitted that if the exclusionary clause in so far as it excludes free service from the ambit of services under section 2(1)(O) of the C.P. Act is challenged, there are sufficient 10 I J M T P : 7(1-2) January-December 2015

11 Medical Services and Consumer Justice in India: Role of Judiciary for arguments for declaring it ultra -vires Article 14 of the Constitution and also in breach of the Directive Principles of State Policy LIABILITY FOR CRIMINAL NEGLIGENCE In Indian Medical Assn. v. V.P. Shantha (supra) the Supreme Court clarified that the services rendered by a medical professional are services within the definition of the Consumer Protection Act and therefore medical practitioners are also liable for deficiency in service under the Act. Other than civil liability under the Consumer Protection Act, medical professionals can also be prosecuted for criminal negligence under the provisions of the Penal Code, Every law is a double-edged sword. The C.P. Act under which the medical practitioners are also held to be liable for deficiency in service is no exception to this rule 45. In 2006 the Supreme Court in Jacob Mathew v. State of Punjab 46 while laying down certain guidelines to protect doctors from unjust prosecution, had observed that these guidelines will hold good till the Government frames guidelines in consultation with the Indian Medical Association. The guidelines in brief are as under: (a) A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. (b) The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service, qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying the Bolam test to the facts collected in the investigation. (c) A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been leveled against him). Unless his arrest is necessary for I J M T P : 7(1-2) January-December

12 Mushtaq Ahmad Dar furthering the investigation or for collecting evidence or unless the investigating officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld 47. Specifically in regard to criminal negligence, the Supreme Court in Jacob Mathew case (supra) has held: For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree... Since guidelines have not been framed by the Government for the last four years as directed by the apex Court in 2006 in Jacob Mathew case (supra) and in yet another recent judgment of the Supreme Court in Martin F. D Souza v. Mohd. Ishfaq 48, the Court has reiterated the need for guidelines to strike a balance between the interests of patients and that of doctors against unjust prosecution. The Court in this judgment has also laid down certain additional safeguards to this end. The Supreme Court in Martin F. D Souza v. Mohd. Ishfaq (supra) while setting aside the judgment of the Commission, reiterating the Bolam s Rule 49 and the judgment in Jacob Mathew case 50, has held that in cases against doctors, both civil and criminal, before issuing notice to the doctor concerned, the court should first refer the case to a competent doctor or committee of doctors. If the report states that there is a prima facie proof of negligence, only then should the court concerned issue notice to the doctor concerned. 5. CONCLUSION Negligence is negligence and the result of negligence is loss. The Supreme Court itself realised later on the need of making Government answerable to the patients who suffer at the hands of the doctors working in the Government hospitals. The apex court in P.B. Khet Mazdoor Samiti v. State of West Bengal 51 declared that Article 21 imposes an obligation on the State to safeguard the life of every person. Failure on the part of the government hospitals to provide timely medical treatment to a person in need of such 12 I J M T P : 7(1-2) January-December 2015

13 Medical Services and Consumer Justice in India: Role of Judiciary for treatment results in violation of his right to life guaranteed under Article 21 of the Constitution 52. Not only this, the highest court made it clear that financial constraints should not come in the way of providing medical help to the needy. Although the observation of the Supreme Court sounds sweet and deserves to be applauded but grim reality has to be taken into account like other fundamental rights, this right to have proper medical treatment will be observed more in breaches than in compliance because of the lack of effective machinery to enforce this fundamental right. So the proper course is to amend the C.P. Act in the light of recommendations of the working group so as to bring mandatory services provided by the Government or local bodies within the purview of the C.P. Act. Thousands of people loss their life on account of the negligence of the doctors with the result need was felt by the legislators to enact a law for the protection of the life of the masses. However, it has also been observed that sometimes the doctors are discharging their professional duties in good faith still becomes the victim of the clutches of law. Too much suspicion about the negligence of attending doctors, court cases and frequent interference by courts would be a dangerous proposition as it would prevent doctors from taking decisions which could result in complications and in this situation the patient would be the ultimate sufferer. The Supreme Court has rightly reiterated the need for guidelines to strike a balance between the interests of patients and that of doctors against unjust prosecution. 1. Hereinafter referred as C.P. Act. NOTES & REFERENCES 2. C.P. Act, 1986, applies to the whole of India except J&K where a separate legislation The J&K consumer protection Act, 1987, having almost identical provisions has been passed by the legislature of the State, two District Forums have been set up at Divisional head quarters and a State commission. 3. Para 4 of Statement of Objects and Reasons to the Act states that in order to provide speedy and simple redressal to consumer disputes a quasi-judicial body is sought to be setup at the District, State and central level. 4. Section 2(d) defines consumer as follows: I J M T P : 7(1-2) January-December

14 Mushtaq Ahmad Dar Consumer means any person who, (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such, person but does not include a person who obtains such goods for resale or for any commercial purpose, or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly promised or partly paid or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. 5. Section 2(1)(0) defines Service: Service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. 6. Saraf, D. N Supplement to the Law of Consumer Protection in India, New Delhi, N. M. Tripathi Publicatios, pp Section 2 (1)( g) defines deficiency. Deficiency means any fault, imperfection, short-coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pusuance of a contract or otherwise in relation to any service. 8. See Section 2(1)(0) of the C.P. Act. 9. Sexana, I. C. 1988, The consumer protection Act A View point ; Journal of Indian Law Institute; New Delhi, Indian Law lnstitute, Vol. 30. pp Azmi, S.S.H. 1992, Sale of Goods and Consumer Protection in India, New Delhi, Deep and Deep Publications, 1 st Ed., pp Ibid CPR. 64(NC) 13. Commissioner Hindu Religious Endowments, Madras v. Sri Lakashmi lndra Thirteen Swamiar (1954) SCR 1005; See also Municipal Corp. of City of Baroda v. Babu Bai Himat Lal, 1989(3), SCR I J M T P : 7(1-2) January-December 2015

15 Medical Services and Consumer Justice in India: Role of Judiciary for 14. Supra note Per Y. Krishna, Member of the National Commission Id Ahmad Farooq 1994, Medical Mal-Practices and the Consumer s Protection: Paradox or Parallax, Kashmir University Law Review, Vol. 1, No. 1, p Supra note Ministry of Civil Supplies and Public Distribution, Government of India Constituted a High Power Working Group on to Consider the Various Suggestions to Make the C.P. Act and MRTP Act more effective (1) CPR 330 (NC). 20. Birbal Singh v State Insurance Corporation, (1993)11, CPJ Ravinder Gupta v. Ganga Devi (1993)1, CPJ See e.g., S. Prassad v. State of Karnatka, 1994 (1) CPR, See e.g., L.T.Kot Girl v. Union of India, (1993)1 CTJ, See e.g., MiIkiat Singh v. State of Punjab, (1993)1 CTJ, See e.g., Motibai Dalvi Hospital v. M. I. Govilkar 1992(1) CPR, 409, see also S.S.Khalon & Ors, v. Sawa Hospital and Ors (1) CPR Singh Gurjeet 1995, Medical Negligence, Journal of Indian Law lnstitute, New Delhi, Indian Law Institute, Vol. 37, July September 1995, p (1) CPR 499 (A.P). 28. (1991)11 CPJ 444 (Ker). 29. Mappooyan v. P. Elango, 1991(11), CPR 460 (T.N). 30. ld. at (1992)1 CPJ 302 (NC). 32. (1992)11 CPR Supra note See e.g., The State Commission of Tamil Nadu in R. Lalitha v. M. Jeeva, 1992(2) CPR 409, awarded a compensation of Rs. 2.5 lakhs, out of which Rs. One lakh on account of rupture and removal of her uterus; Rs. One lakh for sufferings from the pain and agony by prolonged labour pain and 50 thousands for the loss of male child due to the negligence of the opposite party. See also Anuradah Sahoo v. Orissa Nursing Home, (1992) II CPJ, 803, where the Orissa State Commission specifically held that the treatment in a nursing home for payment was service rendered within the meaning of the C.P. Act. 35. Supra note (I) MLJ (II) CPR Supra note 36. I J M T P : 7(1-2) January-December

16 Mushtaq Ahmad Dar 39. Supra note India Medical Association v. V. P. Shantha & Ors., 1995 (II) CPR Ibid at 427 Para Mumbai Gahak Panchayat v. Dr. (Mrs) Rashmi B. Fadnavi, 1997 (I) CPR (NC) Matta, A. M. 1996, Medical Negligence and the Consumer Protection Law-Recent Trends, Kashmir University Law Review, Vol. III, No. 3, pp Article 38 Directs the State to strive for social order for promotion of welfare of people. Article 47 is more specific in casting a primary duty on the State to improve public health. 45. Haripriya Padmanabhan 2009, Medical Negligence Need for Safeguards, Practical Lawyer (2009)PL(CL) March 18.Retrieved from practical lawyer/index.php? 46. (2005) 6 SCC 1: 2005 SCC (Cri) Supra note 45 at Para (2009) 3 SCC Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582: (1957) 2 All ER 118. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. 50. Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 at pp , para 48: 2005 SCC (Cri) AIR 1996 SC Id. at I J M T P : 7(1-2) January-December 2015