VASANTHA P.NAIR vs MESSRS COSMOPOLITAN HOSPITALS (P) LTD.

BY this order we are dealing with a preliminary objection raised by the opposite parlies to the maintainability of the complaint filed under the Consumer Protection Act. The brief facts relevant for the order are the following :

COMPLAINANT is the widow of one G.P. Nair, a Company Executive in the service of the Aluminium Industries Ltd., Thiruvananthapuram. The first opposite party is the Cosmopolitan Hospitals (P) Ltd., Thiruvananthapuram and the second opposite party who is a retired Professor of the Medical College is the Senior Consultant in Orthopeadics in the Hospital. G.P. Nair was admitted in the hospital on 7.9.1989 with persistant back pain. The second opposite party diagnosed the ailment as tuberculosis and started treatment therefor. In the course of the treatment the patient exhibited other symptoms which, it was diagnosed, were due to jaundice and he was transferred to one Dr. P.P. Joseph, a physician from 15.9.1989. As the condition of the patient grew worse he was referred on 17.9.1989 to the Gastro Enterology department of the Medical College Hospital, Thiruvananthapuram where better facilities for diagnosis and treatment are available. It appears that he was actually taken to the Medical College Hospital on 18.9.1989. While undergoing treatment in the latter hospital he died on 28.9.1989. (The exact cause of his death is not known on the pleadings or the records now available in the case). On 27.9.90 the complainant brought this complaint claiming a compensation of Rs. 5,67,776 from the opposite parties on the plea that they were criminally negligent in their diagnosis and treatment of G.P. Nair while he was in their hospital and that had they been careful his valuable life could have been saved. In their joint version the opposite parties have so far as relevant not only repudiated the charge of negligence but have also contended, that the complainant has no cause of action against them, that she can initiate no proceedings against them, as the death of her husband occurred while he was under treatment in the Medical College Hospital and that consequently this commission has no jurisdiction to entertain the complaint.

As the objection so raised touched the very basis of the complaint and the locus standi of the complainant we thought it proper to hear it as a preliminary question. At our suggestion Counsel for the parties put their arguments in the forum of notes for the sake of convenience. We shall consider the points with reference to those notes even though they go beyond the manner in which the objection has been put in the version.

COUNSEL for the opposite parties argued in the first instance that under the scheme of the Consumer Protection Act ("the Act") only a consumer can invoke its provisions and that G.P. Nair''s widow, who seeks to raise the cause is no consumer and cannot therefore be a complainant. He maintained that even if the Act applied she could not file the complainant as the definition of the term consumer in the Act does not take in a legal representative of the consumer. In other words even if the late G.P. Nair was a consumer his widow is not one who could file a complaint. It was not suggested that G.P. Nair''s cause of action assuming he had one - had abated on his death and had not devolved on her. If so his right or cause of action is enforceable by her. We might with profit refer to the following passage from Salmond''s Jurisprudence page 443 Twelvth Edition. "The rights which a dead man thus leave behind him vest in his representative. They pass to some person whom the dead man or the law on his bahalf, has appointed to represent him in the world of the living. This representative bears the person of the deceased, and therefore has vested in him all the inheritable rights, and has imposed upon him all the inheritable liabilities of the deceased. Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man for the representative is in some sort identified by the law with him whom he represent..."

On the scheme of the Act, the grievance can be enforced even by a stranger, for a "complainant" means not only a consumer, but any voluntary consumer registered association and the Central or any State Government who or which makes a complaint. Although the term "consumer" has not been defined to include his legal representative- and that is one of the points urged by Counsel- it is elastic enough as the above passage from Salmond establishes, to include his representatives. A person in whom the rights have become vested by assignment or by operation of law is clothed with these rights and is competent to enforce them. As we observed above it is not the opposite parties'' contention that G.P. Nair''s rights had been extinguished by his death. That being so the complainant can file the complaint and her rights are unaffected by the absence of an explanation in the definition that a consumer includes his assignee or legal representative. The complaint is not liable to be rejected on this ground.

COUNSEL then argued that even G.P. Nair was himself not a consumer within Section 2(1)(d). He maintained that the purposes of the Act are confined to the objects enumerated in the preamble and which contemplate the appointment of Consumer Protection Councils at the Centre and in the States. After pointing out that the emphasis in the preamble is on marketing, quality etc., of goods, COUNSEL drew pointed attention to Sections 6 and 8 which lay down the objects of the Central and State Consumer Protection Councils. These, it was pointed out, relate to goods. COUNSEL submitted that the Act is basically goods orientated and must be so understood despite some incidental references to services. But for the seriousness with which counsel argued that the preamble or the objects clause should predominate over the operative parts, we would have rejected the argument out of hand. Indeed COUNSEL was fully alive to the subsidiary role of the objects clause for he has stated in the argument notes, "It may be that the objects of legislation are looked into only when there is ambiguity in the Act." AIR 1988 S.C. 782. What is relevant and decisive is the operative parts of the enactment and not the object clause. Starting with Section 1, subsection (4) expressly enacts "save as otherwise expressly provided by the Central Government by notification, this Act shall apply to all goods and services." It is significant that the definition of complaint separately provides, for defects relating to goods and deficiencies relating to services-not services related goods. The contention that the objects mentioned in Sections 6 and 8 exhaust the objects of the entire Act is a misreading of the Act and it also overlooks even the limited scope of those Sections. Even so Clauses (d), (e) and (f) of Section 6 do indicate that the Section is not limited to goods. So also is the scheme of Section 8. But it is unsound to argue, as COUNSEL did, that from the objects that are mentioned in Sections 6 and 8 that the purpose of the statute is only to save consumers from exploitation by traders of goods both in sale of goods and in service rendered in relation to goods and in commercial and trade transactions. COUNSEL also sought the support of the definition of ''service'' in aid of the argument. According to him the second party of the definition relates only to commercial and trade transactions. It is not quite clear to what he refers as the second part. In any case there is nothing in this bifurcation that lends support to COUNSEL''s main argument that the Act applies only to commercial transactions. The separate definition for ''defect'' in respect of goods and for "deficiency" in relation to services only goes to negative counsel''s contention which mixes up the idea. The definition of "services" is a comprehensive definition, it means service of any description and includes the various services catalogued. counsel''s argument that the definition, despite its width and inclusive part means only service rendered in relation to goods and in commercial and trade transactions not only abridges the definition but mutilates it. We find it impossible to uphold this interpretation. Counsel also contended that the definition of "Consumer" applies only to sale of goods and services in relation to goods and in commercial and trade transactions. He need not have laboured the point for the first part of the definition expressly applies to sale of goods and the second part expressly does not apply to the sale of goods. To support his argument he quotes the meanings of the word "hire" from Chambers Twentieth Century Dictionary. In his arguments counsel has overlooked some other meanings given to the word e.g. to procure the use or service of at a price, to engage for wages.

WE might reproduce some of the meanings given to the word hire in the Concise Oxford Dictionary. Hire (n) ''payment under contract for use of thing or for personal service; engagement on these terms; (vt) employ (person) for wages or fee...... temporary use of (thing) for stipulated payment.

THE hiring of a thing or the service of a person is the result of an agreement between the hirer on the one hand and the hired on the other. When you hire the services of another, whether a servant or a doctor or a lawyer you really enter into an agreement with him. Counsel argues (in the notes) that the word "hire" involves an amount of right to demand but this argument overlooks the contract or agreement that underlines the hire. When the doctor in a private hospital treats a patient he is really hiring out his services or the hospital hires out the services of the doctor in his employ. What is really involved is a hiring. THE contention that services rendered by a hospital are not attracted by the Act is totally unacceptable- except whereas the definition stands the service is free of charge where it is a contract of personal service. To contend that service means only service to goods is to whittle down the definition or rewrite it 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. If the hospital provides other services the patient is really hiring those services also. All this is born out of a contract, expressor implied, between the patient and the hospital- really the human agency representing the hospital. When the hospital opens its doors and offers its services, the patient who goes to the hospital and pays for the services is really hiring the services. We find it impossible to agree with Counsel''s contentions on the point.

The definition of ''service'' excludes from its scope service under a contract of personal service. It was ought to contend that the service of a doctor is personal service and therefore outside the definition of service. While conceading that what is rendered by a lawyer or doctor is professional service, counsel maintained that nevertheless it is essentially personal service. There is in a general sense a personal element in the medical officer''s service to their clients, but we do not think they can be called personal service. A medical officer''s service may occasionally or marginally be called personal service but it will be incorrect, unfelicitous and crude to describe it as personal service. Personal service stems from a master and servant relationship which is totally different from a lawyer-client relationship and what is involved in that relationship. It is wrong to call the service rendered by a lawyer or doctor to his clients as personal service.

COUNSEL also referred to the definition of "deficiency" in Section 2(g) to contend that it can relate only to service other than personal service. We do not see how this contention will advance counsel''s main contention. This contention itself is valid only if counsel''s argument about personal service is accepted but as we have found it unacceptable this argument has to fail. We find it unable to accept the arguments of counsel. The Act applies, as it declares in Section 1(4) to all goods and service save as otherwise expressly provided by the Central Government by notification. There is no notification, to our knowledge, which includes medical service which is hired out in a private hospital from the scope of the Act. If the opposite parties are liable for professional negligence they can at the best have the fight or contest shifted to the Forum of a Civil Court and not escape it together, even if their arduous argument is sustainable.

AS we have rejected the contentions of the opposite parties, the case will be enquired into according to the provision of the Act. Complaint allowed.