Consumer Education and Research Society vs RATILAL B. PATEL

THE short question for decision in this appeal is whether the service rendered by medical practitioners is "personal service". This question arises in view of the definition of ''service'' as given in Section 2(1)(o)of the Consumer Protection Act, 1986. According to this definition ''service'' does not include the rendering of any service free of charge or under a contract of personal service. In view of this exclusion clause no "complaint" can be filed under the Act against the person rendering such service.

THE brief facts giving rise to the present appeal are that the present appellants filed a complaint before the Consumer Disputes Redressed Commission, Gujarat at Ahmedabad claiming compensation from the present Respondents - Dr. Ratilal B. Patel, Dr. Pravinbhai M. Dogadia and Dr. D.K. Bhuva on the allegations that they were grossly negligent in treating complainant No. 2 Mr. Gunvantshinh Ratan singh Chauhan (now Appellant No. 2). THE respondents raised a preliminary objection before the aforesaid Commission that it had not jurisdiction to entertain and try the complaint as the contract between Mr. Chauhan and the opposite parties was that of rendering ''personal service'' and such contracts have been specifically excluded from the definition of ''service''. THE Commission upheld the preliminary objections and dismissed the complaint. It remarked as follows : "In the aforesaid circumstances, we are of the opinion that the services rendered by the opposite parties, who are respectively, the General Medical Practitioner, the Surgeon and the Anaesthist, having been rendering "....personal services...", we have no jurisdiction to entertain any complaint against this category of person. Even if a General Medical Practitioner or a Surgeon in any Special Branchtreats a patient in a Nursing Home owned by him such a Nursing Home will not fall in the second category, as stated above'' nomenclature has no importance and the real question is whether there is a direct contract between a patient and a doctor for rendering ''personal services''. We do not know whether Dr. Pravin Dogadia (opposite party No. 2) was doing his professional work in his own name, or whether he was having a Nursing Home of his own. THE fact remains that he was personally involved directly with the complainant/patient."

We are of the opinion that the finding of the State Commission cannot be upheld. The question of what constitutes a contract of ''personal service'' has been dealt with elaborately by this Commission in its order of 9th of August, 1991 A.C. Modagi v.Cross Well Tailor & Anr. II (1991) CPJ 586 (NC). We had occasion to consider this matter specifically in relation to medical practitioners in our order in FA. No. 48 of 1991 M/s. Cosmopolitan Hospital & Anr. v. Smt. Vasantha P. Nair I (1992) CPJ 302 (NC). The Commission had observed therein as under : "In the case of hospitals which provided treatment to patients for payment, we are unable to see how there is any element of personal service involved in such an arrangement. When a patient goes to such a hospital and avails himself of the facility of treatment on payment of consideration, he is dealing only with an institution carrying on the activity of providing medical service for payment and element of ''personal service'' does not enter into the picture in such a case. The hospital may have its own doctors, consultants etc. for treating the patients admitted to its care but ordinarily it is not likely that there will be privity of relationship between the person who gets admitted in the institution and the doctors who may be on the staff of the institution or may be visiting consultants there. In the light of the foregoing discussion, we have no hesitation to uphold the finding of the State Commission that the activity of providing medical assistance for payment carried on by hospitals and members of the medical profession falls within the scope of the expression ''service'' as defined in Section 2(1)(o) of the Act and that in the event of any deficiency in the performance of such service the aggrieved party can invoke the remedies provided under the Act by filing a complaint before the Consumer Forum having jurisdiction."

In view of the above decision of this Commission, we accept the present appeal, set aside the impugned order and remand the case to the State Commission, Gujarat for disposal on merits. In the circumstances of the case, we make no Order as to costs. Appeal allowed.