Services Rendered By Doctors In Lieu Of Fees Fall Under Consumer Protection Act, 2019: Bombay High Court

 The Bombay High Court has recently held that services performed by healthcare service providers in lieu of fees/charges would fall within the purview of the Consumer Protection Act, 2019 (2019 Act).

A Bench comprising Chief Justice Dipankar Dutta and G.S Kulkarni observed,

"We, therefore, hold that mere repeal of the 1986 Act by the 2019 Act, without anything more, would not result in exclusion of 'health care' services rendered by doctors to patients from the definition of the term "service"."

The Bench was adjudicating upon a Public Interest Litigation (PIL) petition moved by Medicos Legal Action Group, a registered trust in Chandigarh seeking a declaration from the Court that services performed by healthcare service providers would not be governed by the Consumer Protection Act, 2019 and further seeking the Court's leave to direct all consumer fora to not register complaints filed under the 2019 Act against healthcare service providers.

The petitioner submitted that the Consumer Protection Bill, 2018 (2018 Bill) preceding the 2019 Act had led to exclusion of 'healthcare' from the definition of the term "service" as defined in the Bill. It was further pointed out to the Court that the Minister for Consumer Affairs, Food and Public Distribution, had stated on the floor of the Parliament that 'healthcare' had been deliberately kept out of the 2019 Act which indicates the parliamentary intent of not including 'health care' within the definition of "service" in the 2019 Act. It was further argued that term 'health care' has not been included in the definition of "service", as defined by section 2(42) of the 2019 Act.

The Bench proceeded to compare the term 'service' as defined under section 2(1)(o) of the 1986 Act and in section 2(42) of the 2019 Act and accordingly observed,

"Reading the two definitions, we do not see any material difference between the two. Except inclusion of 'telecom' in section 2(42) of the 2019 Act, the terms of the definition are identical."

It was further observed that although Section 2(1)(o) of the 1986 Act did not specifically include services rendered by doctors within the term "service", however such an inclusion was considered by the Supreme Court in its decision in Indian Medical Association v. V. P. Shantha & Ors.

"We see no reason to hold that merely because of enactment of the 2019 Act upon repeal of the 1986 Act as well as the parliamentary debates referred to by the petitioning Trust, the efficacy of the law laid down in the decision in Indian Medical Association (supra) as a binding precedent would stand eroded. The definition of "service" in both the enactments (repealed and new) are more or less similar and what has been said of "service" as defined in section 2(1)(o) of the 1986 Act would apply ex proprio vigore to the definition of the terms "service" in section 2(42) of the 2019 Act. Therefore, we have little reason to hold that services rendered by doctors in lieu of fees/charges therefor are beyond the purview of the 2019 Act", the Court noted further.

Furthermore, rejecting the contention that statements made by the Minister for Consumer Affairs, Food and Public Distribution on the floor of the House would be indicative of the legislative intent to exclude services rendered by doctors from the purview of the 2019 Act, the Court remarked,

"In the context of the 1986 Act and the 2019 Act, there could be no two opinions that the definition of "service" having been read, understood and interpreted by the Supreme Court in Indian Medical Association (supra) to include services rendered by a medical practitioner to his patient upon acceptance of fees/charges, the parliamentarians might have thought of not including `health care' as that would have amounted to a mere surplusage. If at all the Parliament while repealing and replacing the 1986 Act with the 2019 Act had intended to give a meaning to the term "service" different from the one given by the Supreme Court, such intention ought to have been reflected in clear words by a specific exclusion of 'health care' from the purview of the 2019 Act"

While construing a statute, what has not been said is equally important as what has been said, the Bench further underscored.

Accordingly, the Court opined that the instant petition was 'a thoroughly misconceived Public Interest Litigation' and accordingly imposed costs to the tune of Rs 50,000.

"The petitioning Trust shall pay, as costs, Rs.50,000/- to the Maharashtra State Legal Services Authority within a month from date failing which such sum shall be recovered as arrears of land revenue", the Court directed.

Case Title: Medicos Legal Action Group v. Union of India

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