CONSUMER PROTECTION ACT,1986
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ISSUES, CHALLENGES & POSSIBLE SOLUTIONS Dr. R. K. SharmaAssistant ProfessorDept. of Hosp. Admin. PGIMER ChandigarhAssisted by Dr Jitender Sodhi
IntroductionMilestonesBrief description of CPA,1986Consumer dispute redressal systemLandmark judgments of honorable Supreme Court of IndiaCPA cases in which PGI gave expert opinionCPA cases against PGI ;case studiesDos & DontsTake away messageConclusion
Consumer Protection Act, 1986 An important Act in the history of the consumer movement in the country.
It was drafted to provide the better protection and promotion of consumer rights through the establishment of consumer councils and quasi-judicial machinery.
Mile stone in the history of socio-economic legislation and directed towards public welfare and public benefits
Consumer protection during the Mughal times and especially during the time of Khiljis.
British regime (1765-1947), (Colonial Era), Governments economic polices in India were concerned more with protecting and promoting the British interests than with advancing the welfare of the native population.
Prominent among these were: the Indian Penal code, 1860, the sale of Goods act, 1930, the dangerous drugs act, 1930 and the drugs and cosmetics act, 1940
J.N.Sarkar (1952): Mughal Administration, Calcutta.J.N.Pandey (1992): Constitutional Law of India, Allahabad: Central Law Agency, pp.1-16.
During post independence period, enactment of a number of laws to safeguard the interests of the consumers from various angles such as:
Banking Companies Act,1949 (later called The Banking Regulation Act) to amend and consolidate the Law related to banking matters
Industries (Development and Regulation)Act,1951 to implement the Industrial Policy Resolution of 1948 These were among earlier steps taken by National Government in India in the direction of consumer protection.
Thou shalt not injure thy neighbor
Neighbor principle- Lord Atkins (1932)
Liability for negligence is based on a general public sentiment of moral wrong doing for which the offender must pay
Neighbour : Persons who are so closely and directly affected by my act, that I ought to have them in my mind while performing those acts (Donoghue Vs Stevenson 32)
Various provisions providing protection to the consumer against adulterated and substandard articles were made available, like
Indian Penal Code 1860
Criminal Procedure Code, 1908
Sales of Goods Act, 1930
Indian Contract Act, 1972
Prevention of Food Adulteration Act, 1954
Monopolies and Restrictive Trade Practices Act, 1969
Standard of Weights and Measures Act, 1976
Motor Vehicle Act,1988
But very little could be achieved in the area of consumer protection Contd..
In order to achieve these objectives, the Consumer Protection Bill, 1986 was introduced in the Lok Sabha on December 5th 1986. The motive of CPA 1986 was to ensure the better protection of the interest of consumers from exploitation and for the purpose to make provisions for the establishment of Consumers Councils and other authorities for the settlement of consumers dispute and for matters connected therewith.
Malpractice such as Adulteration
Shortage or Non availability of essential goods at reasonable price.
Lack of control on the quality of the consumer goods.
Global markets and open economie
CPA(1986) was enacted for the promotion and prevention of the consumers-
Right of redressal
Right to information
Right to choose
Right to be heard
Right to safety
A doctor, when consulted by a patient owes to him:
Duty of care
Duty of administration of most appropriate treatment. A breach of any of these duties gives the right of action for medical negligence to the patient.
The main relief provided under the Consumer Protection Act is compensation for the damage caused due to deficiency in service, which in the case of medical services is negligence
Three elements for obtaining compensation:
That there was a legal duty of providing care.
Violation of that duty
That this breach resulted in damage, injury/death
Means a failure on the part of the doctor by not acting in accordance with medical standards in vogue which are being practiced by a prudent doctor practicing in the same profession.
Unexpected developments, complications and risks can not be considered as negligence, if these have been explained to the patient.
Prudent: exercising good judgment or common sense.
Medical services provided at Government/Non-Government hospitals, where fees are required to be paid by some and others are provided free service.
When the employer or insurance company bears the expenses of medical treatment.
ESI hospitals/SAIL or any other hospital/clinic run by an industrial house or company for the benefit of their employees and members of their families.
Non Government hospitals/ Government hospitals where all patients are given free service.
The question about excessive fee of doctor.
For violation of medical ethics.
When there is no evidence, documents, receipts etc and no affidavits to support your complaint.
Where case has already been filed / decided in a civil court for the same cause of action.
Services provided by CGHS dispensaries /hospitals etc where some token charges, such as membership fee/registration fee is charged but treatment and medicines are provided free .
When anyone feels or is able to prove :
That the patient has been made to pay the fees for a service not actually provided
When there has been a deficiency in the medical service provided as breach of duty described above.
ALLEGED EXCESSIVE FEES REGARDING CONSULTATION,OPERATION,DIAGNOSTIC TEST,BED CHARGES ETC,AND FOR ANY OTHER CHARGES FOR SERVICES ACTUALLY PROVIDED
A consumer for himself and/or for his beneficiary including parents, guardians for minor wards and children etc.
The complaints can be either hand written legibly or typed, but preferably typed. It may be in a local language.
The complaint can be submitted in person, through agent/lawyers, or by registered post. documentary support is a must
Total Three membersRetired District Judge presidentOne ladyCompensation up to 20 lacs
Total Three membersRetired High Court Judge -presidentOne ladyCompensation > 20 lakh to 1 croreAppeal against district forum of stateDISTRICT LEVELSTATE LEVEL
Total Five members
Retired Supreme Court Judge presidentOne ladyCompensation > 1croreAppeal against state forumRevision orders
The complaint needs to be lodged with in two yrs from the day of cause of actionException can be made but valid reason to be documented
With in 30 daysCertain amount of compensation awarded is required to be deposited
APPEAL AGAINST THE DECISIONLIMITATION PERIOD
Refund of the charges paid.
To award compensation for any loss or injury suffered due to the negligence of the opposite party / Nursing home.
To rectify the deficiency in services, and
To compensate the financial losses occurring to the affected party (e.g; lawyer fees, loss of wages in case of earning member and potential future earning)
The deficiency of service as described CPA(original)1986Deficiency means any fault, imperfection, shortcoming in quality, nature and manner of performance which is required by or under any law for time being in force or has been undertaken to be performed by person in pursuance of contract or otherwise in relation of any service.
8Any act of Omission or commission which causes any damage to the consumer on account of negligence or consciously withholding of relevant information to the consumer. PLUS
LANDMARK JUDGMENTS OF SUPREME COURT OF INDIA
Whether the services provided by a doctor to a patient fall under the ambit of service as defined under section 2(1)(0) of this act.
Judgment of Supreme Court
The Honorable court directed that services provided to a patient by a doctor by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1) (o) of the Act.
The detailed inclusion and exclusion criteria's framed in this judgment are discussed earlier(slide no- 11&12)
The patient died due to the carelessness of doctors and nurses and non availability of oxygen cylinder and the empty cylinder was fixed on the patient.
An FIR was registered under Section 304A/34 IPC, against the two doctors.
Both of them filed a revision in the Court of Sessions Judge and subsequently in High Court for quashing of the FIR but the revision was dismissed. Contd.
The investigating officer before proceeding against the doctor accused of negligence needs to obtain an independent a