Landmark Judgements Series

INDIAN MEDICAL ASSOCIATION v. v. P. SHANTHA & OTHERS
AIR 1996 SC 550: 1995 sec (6) 651


The question to be decided in thfs interesting case was Whether medical profession (doctors, hospitals, nursing homes, etc.) fall Within purview of the Consumer Protection Act.To file a case under this act person who buys goods or hires or avails of services. The issues to be decided in this landmark case by the Supreme Court Bench consisting of Justices Kuldeep Singh, S. C. Agarwal and B. L. Hansaria were as under:


1.Whether a medical practitioner can be regarded as rendering ‘s e ~ as defined under Section2 (1) (o) of the Consumer Protection Act1986?
2.Whether the services rendered at a hospital or nursing home can be regarded as ‘service’ as defined in Act?

The term “service: is defined by S. 2(1)(o) of the Act to mean service of any description which is made available to potential users. The term include but is not limited to, the provision of facilities in connection with banking,financing, insurance; transport, processing, supply of electrical or other energy,boarding and/or lodging, housing construction, entertainment, amusement purveying of news or other information. However, the term does not include the rendering of any service free of charge, or the rendering of any service under a contract of personal service.

  1. Doctors are already subject to possible disciplinary action of the Indian Medical Council and State Medical Councils.,Negligent doctors are also liable under the law of torts and under the Indian Penal Code.
  2. Consumer court judges are not trained in medical science and hence may not be able to do full justice in medical cases. ‘
  3. If the sword of consumer litigation hangs over a doctor he would not be able to discharge his medical obligations efficient.
  4. Consumer cases against doctors are usually given a lot of publicity in the media, thus putting an unnecessary strain on the reputation of doctors.
  5. Often, false and frivolous complaints are filed against doctors and hospitals – sometimes, promoted and/or encouraged by a rival doctor or hospital. ·
  6. The Supreme Court rejected the above contentions .and held that doctors, hospitals and nursing homes do render a ‘service’ as defined in the Act and they would therefore be lipble under the Consumer Protection Act – unless such service is rendered d free of cost, that is expressly excluded by the Act.
  7. Advocates representing the medical profession strongly argued that a physician or a surgeon is always chosen because of his personal skill, qualification, reputation and the faith which a patient has in him. Thus,·there is a personal contract between him ·and his patient. ‘Now, since a contract of personal service is not ‘service’ as defined ‘in the Act, the patient cannot be said to have availed of any ·service. He is therefore not a ‘consumer (as defined) and cannot file a claim under the Act.
  8. In rejecting this contention, the Supreme Court drew a fine distinction between a contract of personal service and a contract for personal service. The court admitted that the relationship between a doctor and his patient is a contract in the eyes of law. However, according to the court, this is a contract for personal services. What is excluded by the definition is a contract o f personal services, as for instance, a master-servant relationship between two persons.
  9. The propositions laid down by the court in this case may be summed up as under: ‘
  10. (1) Service rendered to a patient by a doctor by way of consu~ta!ion, diagn~sis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1) (o) of the Act – except where the doctor renders service free of charge.
  11. (2) Thefactthatmedicalpractitionersaresubjecttothedisciplinarycontrol of the Medical Council of India and/or State Medical Councils would not exclude the services rendered by them from the ambit of the Act.
  12. (3) A ‘contract of personal service’ has to be distinguished from a ‘contract for personal services’. In the absence of a relationship of master and servant between the patient and a doctor, the service rendered by him to •a patient cannot be regarded as service rendered under a cont personal service. Such service is service rendered under a ‘cont;act 01
  13. . personal services’ which is not excluded under the above definitio~~t for
  14. (4)
  15. (5)
  16. (6)
  17. (7)
  18. (8)
  19. (9)Service renc;tered free ofcharge by a doctor attached to a hospital where such services are rendered free of charge to everybody, would not be “service” as defined. The payment of a token amount for registration purpose only at the hospital would not alter the position, and the patients
  20. in such a hospital cannot be called ‘consumers’.
  21. The expression .’contract of personal service’ as used in the Act Woui cover contracts for employment of servants and would also include thd employment of a medical officer for the purpose of rendering medica~
  22. service to the employer. Th(Js, the service rendered by a medical officer
  23. to his employer under the contract of employment would be outside the purview of the Act.
  24. Service rendered at any hospital or nursing home where charges are required to be paid by all persons would fall _within the purview of the expression ‘service’ as defined in the Act. Such hospitals and nursing homes are therefore covered by the Act.
  25. If patients are charged fees in a hospital, which also has Free Wards for the poor, all the patients – ~hether paying or non-paying – are consumers and can file claims under the Act.
  26. Service rendered by a medical prac;:titioner or hospital or ~ursing home cannot be regarded as service rendered free of charge, just because the person availing the service has taken an insurance policy and is
  27. reimbursed by the insurance company.
  28. Similarly, when the employer bears the expenses of medical treatment of his employee, the service rendered to such.an employee cannot be said to be free of charge, and would therefore constitute ‘service’ under the Act.


Simply stated, the question before the court was Whether a doctor treating his patient can be said to render a ‘service’ to the patient. The answer to this question is of vital importance, because if the answer is in the affirmative, the patient would be regarded as a ‘consumer’ and would be enlifled to file aclaim against the doctor in a consumer court.


The arguments advanced by the medical profession before the Supreme Court can be summed up as under:

  • octors render professional services under a ‘contract of personal service’ which term is expressly excluded from the definition of ‘service’ as given above.


INDIAN MEDICAL ASSOCIATION v. v. P. SHANTHA & OTHERS
AIR 1996 SC 550: 1995 sec (6) 651

tices Kuldeep Singh, S. C. Agarwal and B. L. Hansaria were as under:


1.Whether a medical practitioner can be regarded as rendering ‘s e ~ as defined under Section2 (1) (o) of the Consumer Protection Act1986?
2.Whether the services rendered at a hospital or nursing home can be regarded as ‘service’ as defined in Act?


The term “service: is defined by S. 2(1)(o) of the Act to mean service of any description which is made available to potential users. The term include but is not limited to, the provision of facilities in connection with banking,financing, insurance; transport, processing, supply of electrical or other energy,boarding and/or lodging, housing construction, entertainment, amusement purveying of news or other information. However, the term does not include the rendering of any service free of charge, or the rendering of any service under a contract of personal service.

  1. Doctors are already subject to possible disciplinary action of the Indian Medical Council and State Medical Councils.,Negligent doctors are also liable under the law of torts and under the Indian Penal Code.
  2. Consumer court judges are not trained in medical science and hence may not be able to do full justice in medical cases. ‘
  3. If the sword of consumer litigation hangs over a doctor he would not be able to discharge his medical obligations efficient.
  4. Consumer cases against doctors are usually given a lot of publicity in the media, thus putting an unnecessary strain on the reputation of doctors.
  5. Often, false and frivolous complaints are filed against doctors and hospitals – sometimes, promoted and/or encouraged by a rival doctor or hospital. ·
  6. The Supreme Court rejected the above contentions .and held that doctors, hospitals and nursing homes do render a ‘service’ as defined in the Act and they would therefore be lipble under the Consumer Protection Act – unless such service is rendered d free of cost, that is expressly excluded by the Act.
  7. Advocates representing the medical profession strongly argued that a physician or a surgeon is always chosen because of his personal skill, qualification, reputation and the faith which a patient has in him. Thus,·there is a personal contract between him ·and his patient. ‘Now, since a contract of personal service is not ‘service’ as defined ‘in the Act, the patient cannot be said to have availed of any ·service. He is therefore not a ‘consumer (as defined) and cannot file a claim under the Act.
  8. In rejecting this contention, the Supreme Court drew a fine distinction between a contract of personal service and a contract for personal service. The court admitted that the relationship between a doctor and his patient is a contract in the eyes of law. However, according to the court, this is a contract for personal services. What is excluded by the definition is a contract o f personal services, as for instance, a master-servant relationship between two persons.
  9. The propositions laid down by the court in this case may be summed up as under: ‘
  10. (1) Service rendered to a patient by a doctor by way of consu~ta!ion, diagn~sis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1) (o) of the Act – except where the doctor renders service free of charge.
  11. (2) Thefactthatmedicalpractitionersaresubjecttothedisciplinarycontrol of the Medical Council of India and/or State Medical Councils would not exclude the services rendered by them from the ambit of the Act.
  12. (3) A ‘contract of personal service’ has to be distinguished from a ‘contract for personal services’. In the absence of a relationship of master and servant between the patient and a doctor, the service rendered by him to •a patient cannot be regarded as service rendered under a cont personal service. Such service is service rendered under a ‘cont;act 01
  13. . personal services’ which is not excluded under the above definitio~~t for
  14. (4)
  15. (5)
  16. (6)
  17. (7)
  18. (8)
  19. (9)Service renc;tered free ofcharge by a doctor attached to a hospital where such services are rendered free of charge to everybody, would not be “service” as defined. The payment of a token amount for registration purpose only at the hospital would not alter the position, and the patients
  20. in such a hospital cannot be called ‘consumers’.
  21. The expression .’contract of personal service’ as used in the Act Woui cover contracts for employment of servants and would also include thd employment of a medical officer for the purpose of rendering medica~
  22. service to the employer. Th(Js, the service rendered by a medical officer
  23. to his employer under the contract of employment would be outside the purview of the Act.
  24. Service rendered at any hospital or nursing home where charges are required to be paid by all persons would fall _within the purview of the expression ‘service’ as defined in the Act. Such hospitals and nursing homes are therefore covered by the Act.
  25. If patients are charged fees in a hospital, which also has Free Wards for the poor, all the patients – ~hether paying or non-paying – are consumers and can file claims under the Act.
  26. Service rendered by a medical prac;:titioner or hospital or ~ursing home cannot be regarded as service rendered free of charge, just because the person availing the service has taken an insurance policy and is
  27. reimbursed by the insurance company.
  28. Similarly, when the employer bears the expenses of medical treatment of his employee, the service rendered to such.an employee cannot be said to be free of charge, and would therefore constitute ‘service’ under the Act.


Simply stated, the question before the court was Whether a doctor treating his patient can be said to render a ‘service’ to the patient. The answer to this question is of vital importance, because if the answer is in the affirmative, the patient would be regarded as a ‘consumer’ and would be enlifled to file aclaim against the doctor in a consumer court.


The arguments advanced by the medical profession before the Supreme Court can be summed up as under:


  • octors render professional services under a ‘contract of personal service’ which term is expressly excluded from the definition of ‘service’ as given above.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

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If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

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