professional and consumer protection act

1 PROFESSIONALS and consumer protection act , 1986 Dr. Swati Mehta (Gold Medalist) 1. INTRODUCTION BY VIRTUE of its section 1 (4), the consumer protection Act 1986 (CPA) has been made applicable to "all goods and services." However, attempts by the consumer forums, envisaged and established under this Act, to bring various types of services within its ambit have met with considerable resistance. Despite strong and repeated protestations from some of the concerned sectors, (he issues concerning inclusion of services rendered by airlines, banks, housing boards, insurance companies, railways, roadways and telecommunications within the jurisdiction of CPA have been by and large settled now.)

2 It may also be appropriate to mention here that the attempts by the consumer forums to bring at least three types of services { , housing, medical and educational services) within the fold of CPA had met with resistance to such an extent that in two cases { , housing and medical profession) the matters went up to the Supreme Court for a final word and the third issue { , educational services) is also likely to be debated there. Thus with the pronouncements of the apex court in Lucknow Development Authority v.}}}

3 Gupta1 and in the case of Indian Medical Association v. Shantha2 the issues relating to the services rendered by the housing boards/societies/corporations and the ones rendered by the medical professionals respectively appear to have been Asstt. Professor, National Law University, Faculty of Law, Jodhpur (Raj.) 1 (1993)1 CTJ 929 (SC) 2 (1995)3 CTJ 969 (SC). 2settled. However, as far as applicability of CPA to the educational services is concerned, there have been a large number of decisions both in favour3 as well as against4 their inclusion within the ambit of CPA which has given rise to a lot of controversy and speculation.

4 Nevertheless, the inevitable conclusion is that till the final word on this issue too comes from the Supreme Court, the matter will certainly remain in Medical professionals are not the only ones being held liable for professional negligence under the consumer protection Act. The long arm of the law extends to almost everyone who renders service for a fee- lawyers, architects, engineers, chartered 2. CONCEPT OF CONTRACT OF PERSONAL SERVICE UNDER CPA AND LIABILITY OF PROFESSIONALS It may be appropriate to mention here that whereas CPA has been made applicable to all goods and services 7 two types of services have categorically been kept out of the purview of this Act.

5 These are: Services rendered free of charge;8 and Services rendered under a contract of personal Whereas, there has hardly been any controversy with regard to the first term, the second term contract of personal service has been vehemently debated before the consumer 3 See, , Tilak Raj of Chandigarh v. Haryuna School Education Board, Bhiwani, 1 (1992) CPJ 76; Abel Pacheco Gracias v. Principal, Bharati Vidyapith College of Engineering, I (1992) CPJ 105; Controller of Examination, Board of Intermediate Examinations, Hyderabad v.

6 Kandukuri Uma Devi, I (1993) CPJ 572; Mumbai Crahak Panchayat, Bombay v. Registrar, University of Bombay, I (1993) CPJ 37; and V. Murugesan v. Registrar, University of Madras. 1993 (1) CPR 190 4 See, , Nirmal Taneja v. Calcutta District Forum, II (1992) CPJ 591; Seemu Bhatia v. Registrar, Rajusthan University, II (1992) CPJ 899; Registrar, Evaluation University of Karnataku v. Poornima G. Bhandari, (1994)2 CTJ 408 (NC); Kurukshetra University v. Viney Parkash Verma, (1994)2 CTJ 429 (NC); and Registrar, University of Madras v.

7 Union of India. (1995) 3 CTJ 100 (HC). 5 For details, see, Gurjeet Singh, "Increasing Ambit and Amplitude of the consumer protection Act, 1986 A Case Study of its Applicability to Educational Services", I (9) CTJ 166-87 (Sept. 1993); and, "Applicability of the consumer protection Act, 1986 to Educational Services: Need for a Final Word from the Supreme Court of India", 3(5) CTJ 70-72 (May 1995). 6 Pushpa Girimaji, "All Professionals Come under CPA", The Times of India, p. 14. 22 Jan. 1996. 7 S. 1(4) 8 S. 2(1)(o) 9 Ibid 3forums in a large number of In the context of medical profession, for instance, the highest decision-making body under CPA the National consumer Disputes Redressal Commission has observed that a contract of personal service is the one which involves a master and servant relationship 11 and which is wholly different from a doctor-patient relationship.

8 12 Thus according to the National Commission, the service rendered by a medical doctor to his patients cannot be called as personal service coming within the exempted category mentioned in section 2(1 )(o) of The aforesaid issue was ultimately debated at length before the Supreme Court in the case of Indian Medical Association v. It was in this case that the Supreme Court had finally held that CPA was applicable to the medical profession in India. The Supreme Court had defined, distinguished and elaborately discussed the two allegedly controversial terms, , contract for services and contract of service in this case and had observed.

9 A contract for services implies a contract whereby one party undertakes to render services professional or technical services, to or for another in the performance of which he is not subject to detailed direction and control but exercises professional or technical skill and uses his own knowledge and A contract of service implies relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of According to the Supreme Court.

10 The parliamentary draftsman was aware of this well accepted distinction between contract of service and contract for services and that he had deliberately chosen the expression contract of service instead of the expression contract for services in the exclusionary part of the definition of service in section 10 See, , Motibai Dalvi Hospital v. , 1991(1).CPR 334; Muppooyan v. Premavuthy Mango, 1991(2) CPR 460; Navaneethan v. , 1992(1) CPR 41: v.