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Medico Legal
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is Law Right of
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Ethics FAQ’s
-: FAQ :-
What do you do if a consumer case
against you ?
Let
us glance through the relevant information
about Consumer Protection Act, 1986.
What
is COPRA or CPA or CPA-1986?
Popularly
Consumer Protection Act, 1986 is called as
COPRA,also know as CPA or CPA-1986.
Why
such a law has been enacted ?
The Consumer Protection Act was passed in
1986 with a view to provide for better
protection of the interests of the
consumers. The Act makes provisions for
the establishment of Consumer Protection
Councils and other authorities such as
Consumer Disputes Redressal Forums at the
National, State and District levels for
speedy and simple settlement of consumer
disputes.
What
are the salient features of the Act?
The Act recognises the right of the user
other than the buyer also to sue the
manufacturer by defining the word consumer
to include user also.
It
empowers an individual consumer or a
recognised consumer. Association whether
the consumer is a member of such
association or not to file a complaint in
respect of affective goods or deficient
services.
It
covers not only goods as defined under the
Sale of Goods Act, 1930 but also services
including services provided by public
sector undertakings and government
departments such as banking, financing,
insurance, transport, processing, supply
of electrical or other energy etc.
It
defines the rights of consumers. They
include:
the
right to be protected against the
marketing of hazardous goods;
the
right to be protected against unfair trade
practices;
the
right to be assured access to a variety of
goods at competitive prices;
the
right to be heard and to be assured that
their interests will receive due
consideration at appropriate forums;
the
right to seek redressal against unfair
trade practices or exploitation and
the
right to consumer education.
It
provides for the establishment of advisory
bodies at the Central and State levels to
be known as Central Consumer Protection
Council and the State Consumer Protection
Councils with the object of promoting and
protecting the rights of consumers.
It
provides for the establishment of
quasi-judicial bodies for the redressal of
the grievances of consumers at the
District, State and Central levels known
as District Forum, State Commission and
National Consumer Disputes Redressal
Commission
It
lays down the procedure to be followed in
redressing consumer grievances and
provides a time limit for the disposal of
their complaints.
It
empowers the District Forum to issue
orders to the opposite party to remove the
defect from ‘the goods or to replace the
goods or to return the price or charges
paid and or to pay compensation for any
loss or injury suffered by the consumer
due to the negligence of the opposite
party, in respect of defective goods or
deficient services.
It
empowers the District Forum, the State or
the National Commission to enforce its
order in the same manner as if it were a
decree or order made by the Court, and in
the event of its inability to execute it,
to send such order to a court of competent
jurisdiction for its execution.
It
empowers the forum or commission to impose
a sentence of imprisonment of not less
than one month extending to 3 years or
with a minimum fine of Rs. 2,000/-
extending upto Rs.10,000/- or with both,
for failure to comply with any order made
by it.
The
1993 amendment has empowered the forum or
commission to order payment of
compensation by the complainant to the
opposite party if the petition appears to
be frivolous or vexatious in nature. The
amount shall not be more than Rs.
10,000/-.
Who
can file a complaint?
A
consumer or any recognised consumer
association, i.e., voluntary consumer
association registered under the Companies
Act, 1956 or any other law for the time
being in force, whether the consumer is a
member of such association or not, or the
central or state government.
Who
is a consumer?
A consumer is a person who hires or avails
of any services for a consideration which
has been paid or promised or partly paid
and partly promised or under any system of
deferred payment and includes any
beneficiary of such services other than
the person hires or avails of the services
for consideration paid or promised, or
under any system of deferred payment, when
such services are availed of with the
approval of the first mentioned person.
This definition is wide enough to include
a patient who merely promises to pay.
What
is a complaint?
A
complaint is an allegation in writing made
by a complainant, i.e., consumer that he
or she has suffered loss or damage as a
result of any deficiency of service.
What
is deficiency of service?
Means
any fault, imperfection, shortcoming or
inadequacy in the quality, nature and
manner of performance which is required to
be maintained by or under any law for the
time being in force or has been undertaken
to be performed by a person in pursuance
of a contract or otherwise in relation to
any service.
Where
to file a complaint?
In
the district forum if the value of
services and compensation claimed is less
than one lakh of rupees; before the state
commission, if the value of the goods or
services and the compensation claimed does
of the goods or services and the state
commission, the compensation does not
exceed more than twenty lakhs of rupees.
In the national commission, if the value
of the goods or services and the
compensation exceeds more than twenty
lakhs of rupees.
What
is the cost involved in filing a
complaint?
There
is no fee for filing a complaint or appeal
before the different consumer redressal
forums.
Is
there any provision for appeal?
Appeal
against the decision of the district forum
can be filed before the state commission,
from the state commission before the
national commission and from the national
commission to the Supreme Court. The time
limit within which the appeal should be
filed is 30 days from the date of the
decision in all cases.
What
are the powers of the consumer redressal
forums?
the
summoning and enforcing the attendance of
any defendant or witness and examining the
witness on oath;
the
discovery and production of any document
or other material object producible as
evidence;
the
reception of evidence on affidavits;
the
summoning of any expert evidence or
testimony;
the
requisitioning of the report of the
concerned analysis or test from the
appropriate laboratory or from any other
relevant source;
issuing
of any commission for the examination of
any Witness; and
any
other matter which may be prescribed.
What
is the supreme Court’s decision?
Service
rendered to a patient by a medical
practitioner (except where the doctor
renders service free of charge to every
patient or under a contract of personal
service), by way of consultation,
diagnosis and treatment, both medicinal
and surgical, would fall within the ambit
of ‘service’ as defined in Section 2(1)(0)
of the Act.
The
fact that medical practitioners belong to
the medical profession and are subject to
the disciplinary control of the Medical
Council of India and/or State Medical
Councils constituted under the provisions
of the Indian Medical Council Act would
not exclude the services rendered by them
from the ambit of the Act.
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 medical practitioner, the
service rendered by a medical practitioner
to the patient cannot be regarded as
service rendered under a contract of
personal service’. Such service is service
rendered under a ‘contract for personal
services’ and is not covered by
exclusionary clause of the definition of
‘service’ contained in Section 2(1)(0) of
the Act.
The
expression ‘contract of personal service’
in Section 2(1)(0) of the Act cannot be
confined to contracts for employment of
domestic servants only and the said
expression would include the employment of
a medical officer for the purpose of
rendering medical service to the employer.
The service rendered by a medical officer
to the employer under the contract of
employment would be outside the purview of
‘service’ as defined in Section 2(1)(0) of
the Act.
Service
rendered free of charge by a medical
practitioner attached to a
hospital/nursing home or a medical officer
employed in a hospital/nursing home where
such services are rendered free of charge
to everybody, would not be
“service” as defined in Section
2(1)(0) of the Act. The payment of a token
amount for registration purpose only at
the hospital/nursing home would not alter
the position.
Service
rendered at a non-Government
hospital/nursing home where no charge
whatsoever is made from any person
availing the service and all patients
(rich and poor) are given free service, is
outside the purview of the expression
‘service’ as defined in Section 2(1)(0) of
the Act. The payment of a token amount for
registration purpose only at the
hospital/nursing home would not alter the
position.
Service
rendered at a non-government
hospital/nursing home where charges are
required to be paid by the persons
availing such services falls within the
purview of the expression service as
defined in Section 2(1)(0) of the Act.
Service
rendered at a non-Government
hospital/nursing home where charges are
required to be. paid by persons who are in
a position to pay and persons who cannot
afford to pay are rendered service free of
charge would fall within the ambit of the
expression ‘service’ as defined in Section
2(1)(0) of the Act irrespective of the
fact that the service is rendered free of
charge to persons who are not in a
position to pay for such services. Free
service, would also be “service”
and the recipient a “consumer”
under the Act.
Service
rendered at a Government hospital/health
centre/ dispensary where no charge
whatsoever is made from any person
availing the services and all patients
(rich and poor) are given free service is
outside the purview of the expression
service’ as defined in Section 2(1)(0) of
the Act. The payment of a token amount for
registration purpose only at the hospital/
nursing home would not alter the position.
Service
rendered at a Government hospital/health
centre/ dispensary where services are
rendered on payment of charges and also
rendered free of charge to other persons
availing such services would fall within
the ambit of the expression ‘service’ as
defined in Section 2(1)(0) of the Act
irrespective of the fact that the service
is rendered free of charge to persons who
do not pay for such service. Free service
would also be “service” and the
recipient a “consumer” under the
Act.
Service
rendered by a medical practitioner or
hospital/nursing home cannot be regarded
as service rendered free of charge, if the
person availing the service has taken an
insurance policy for medical care where
under the charges for consultation,
diagnosis and medical treatment are borne
by the insurance company and such service
would fall within the ambit of ‘ service’
as defined in Section 2(1)(0) of the Act.
Similarly,
where, as a part of the conditions of
service, the employer bears the expenses
of medical treatment of an employee and
his family members by a medical
practitioner or a hospital/nursing home
would not be free of charge and would
constitute ‘service’ under Section 2(1)(0)
of the Act.
If
multiple respondents reside in different
jurisdictions, which consumer forum has
the jurisdiction to entertain the petition
and adjudicate the matter ?
The
Consumer Protection Act states that incase
a complaint is being filed against more
than one respondents and some of them are
not residing within the jurisdiction of
the Commission in which the complaint is
instituted, the permission of the
complainant needs to be taken. However, in
case the complainant has not taken
permission, the Commission has the power
to grant such permission at a later stage.
If, however the opposite party has
accepted the jurisdiction of the forum,
even by implication, he would be estopped
from raising any objection at a later
stage.
What
is the procedure for making complaint ?
Section
12 of the Consumer Protection Act lays
down the manner in which a complaint shall
be made. The section states that a
complaint in relation to any goods sold or
delivered or any service provided or
agreed to be provided may be filed with a
District Forum by:
The
consumer to whom such goods are sold or
delivered or agreed to be sold or
delivered ro such service provided of
agreed to be provided;
Any
recognized consumer association whether
the consumer to whom the goods sold ro
delivered or agreed to be sold or
delivered pr service provided or agreed to
be provided is a member of such
association or not;
One
or more consumers, where there are
numerous consumers having the same
interest, with the permission of the
District Forum, on behalf of , or for the
benefit of, all consumers so interested;
or
The
Central or State Government.
On
the receipt of the complaint, the District
Forum has to refer a copy of the complaint
to the opposite party mentioned in the
complaint directing him to give his
version of the case within a period of 30
days or such extended period not exceeding
15 days as may be granted by the Forum. In
case the opposite party, on the receipt of
the complaint referred to him denies or
disputes the allegations contained in the
complain, or omits or fails to take may
action to represent his case within the
time given by the District Forum, the
District Forum has to proceed to settle
the dispute in the manner provided in the
Act.[1]
To
sum up, on the receipt of the complaint,
the District Forum should:
Give
notice to the opposite party
The
notice should be accompanied with the copy
of the complaint
The
opposite party should be given a minimum
of 30 days to give his version
The
period of 30 days may be extended by the
District Forum for the further period, but
not exceeding 15 days.
The
District Forum should wait for a statutory
period of 30 days from the date of notice
for the version of the opposite party and
should not order ex parte proceedings
before the expiry of the minimum period of
30 days from the notice and
Even
if the opposite party fails to give his
version within 30 days of the notice or
the extended time, the complaint should be
decided by the District Forum, after
recording the evidence of the complainant
on merits.
In
case the complaint pertains to deficiency
in service, the District Forum, as per the
mandate of the Act should refer a copy of
such complaint to the opposite party
directing him to give his version of the
cause within a period of 30 days or such
extended period, not exceeding 15 days, as
may be granted by the District Forum.
After
the notice of the complaint to the
opposite party, if the opposite party
admits the claim of the complainant, the
District Forum may pass the consent order
in favour of the complainant provided the
claim is justified on the basis of the
documents and affidavits filed before the
Forum. However, before passing such a
consent order, the Commission has to
satisfy itself, that there is no collusion
and that the admissions have been made
under no influence.[2]
Section
13(2)(b) of the Consumer Protection Act
lays down that if the opposite party does
not respond to the notice sent to him by
the Commission or denies or disputes the
allegations made by the Complainant, the
Commission shall have the power to decide
the dispute on the basis of the evidence
brought to its notice by the complainant
and the opposite party, where the opposite
party denies or disputes the allegation of
the complainant or on the basis of the
evidence supplied to it by the
complainant, if the opposite party does
not respond to the notice of the
Commission.
On
the other hand, if the complainant fails
to appear on the day of hearing, the
District Forum has the power to either
dismiss the complaint for default of
decide it on merits. This is provided for
in the Rules and not in the Act itself.
The Commission also has the power to
restore the complaint if sufficient
reasons for non-appearance are given.
With
regard to setting aside of ex parte
orders, it has been held that if
sufficient cause is shown for
non-appearance of the parties, the
Consumer Forum has the power to set aside
the order passed ex parte.
What
are the Powers of District forum ?
The
Consumer Protection Act vests the District
forum with the powers given to a Civil
Court by the Code of Civil Procedure,
1908. These are:
The
power to summon and enforce the attendance
of any defendant or witness and examining
the witness on oath.
The
authority to order for discovery and
production of any document or other
material object producible as evidence;
The
power to receive evidence on affidavits;
The
power to requisition the report of the
concerned analysis or test from the
appropriate laboratory or from any other
relevant source;
The
power to issue any commission for the
examination of any witness.
Moreover,
the Act says that the proceedings before
the District Forum shall be deemed to be a
judicial proceeding within the meaning of
Section 193 and 228 of the Indian Penal
Code. Hence, a person giving false
evidence can be punished under the Penal
Code. The power to proceed against a
person for contempt of court is also
provided for.
After
the proceedings under Section 13 are
completed, the District Forum, if it is
satisfied that the allegations contained
in the complaint about the services are
proved, shall, in the case of services
direct the opposite party to return to the
complainant or as the case may be, the
charges paid by the complainant. It can
also order the opposite party to pay such
amount as may be awarded by it as
compensation to the consumer for any loss
or injury suffered by the consumer due to
the negligence of the opposite party.
The
proceedings of the District forum, as per
the Act has to be conducted by the
President of the Forum and atleast one
member sitting together. The decision of
the Forum has to be signed by the
President and the other member or members
sitting with him for the proceeding. If
there is a split decision between the
President and a member, the matter has to
be referred to a third member for his
opinion. The opinion of the majority then
becomes the order of the Forum.
What
are the rules regarding appeal ?
In
case any person is aggrieved by the order
of the District Forum, he may prefer an
appeal against such order to the State
Commission within a period of thirty days
from the date of the order. The State
Commission, however has the power to
entertain the appeal after the said period
of thirty days if it is satisfied that
there was sufficient reason not to file
the appeal within the stipulated time.
What
is he jurisdiction of State Commission ?
The
Consumer Protection Act, as mentioned
earlier, provides for the setting up of a
State Commission. This State Commission,
as per the Act shall consist of a
President, who shall be or has been a
Judge of a High Court. There is a
provision for two other members, one of
whom has to be a woman. The State
Commission has the jurisdiction to
entertain complaints where the value of
the goods or services and compensation, if
any, claimed exceeds rupees five lakhs,
but does not exceed rupees twenty lakhs.
It also has the power to entertain appeals
against the orders of any District Forum,
within the State. It further has the
authority to summon the records and pass
appropriate orders in any consumer dispute
pending before any District Forum in the
State or which has been decided by any
District Forum if it has failed to
exercise a jurisdiction so vested or has
acted in exercise of its jurisdiction
illegally or with material irregularity.
The same procedure that applies to
District forums applies to the State
Commissions also.
What
about appeals ?
Any
person aggrieved by an order made by the
State Commission under its original
jurisdiction has the right to prefer an
appeal to the National Consumer Disputes
Redressal Forum. The appeal has to be
filed within a period of thirty days from
the date of the order. It is however
provided that the National Commission may
allow the appeal after thirty days if it
is satisfied that there was sufficient
cause for not filing within that said
period.
What
is the jurisdiction of National Commission
?
The
Consumer Protection Act provides for a
National Consumer Disputes Redressal
Forum. The forum consists of a President
and four other members. The President has
to be either a sitting or retired Judge of
the Supreme Court.
The
National Commission has the jurisdiction
to entertain complaints where the value of
the goods or services and the
compensation, if any, claimed exceeds
rupees twenty lakhs. It also has the
jurisdiction to entertain appeals any
orders of any State Commission. Further,
it has the power to call for the records
and pass appropriate orders in any
consumer dispute pending or decided by any
State Commission, where the State
Commission has acted in excess of its
jurisdiction or has failed to exercise the
jurisdiction vested in it or has exercised
jurisdiction illegally. The National
Commission also has the powers that are
vested in the Civil Court, as prescribed
in Section 13, Consumer Protection Act.
What
about appeal ?
A
person aggrieved by the order of the
National Commission has the right to
appeal to the Supreme Court. The appeal
has to be filed in the Supreme Court
within thirty days of the order of the
National Commission. The Supreme Court,
however has the power to accept the appeal
after thirty days if sufficient reasons
are given for the delay. Moreover, the Act
stipulates that if either of the parties
do not appeal to the Appellate body,
within the stipulated time, the order of
the Forum shall be final.
Is
there any limitation period to file a
petition before the forum or preferring an
appeal ?
Limitation
means a legally specified period beyond
which an action cannot be brought, or a
property right is not to continue. The
Limitation Act provides for the period
within which the suit has to be filed. In
addition to this, some statutes prescribe
a period of limitation for certain
procedures.
Before
the amendment in 1993, the limitation
period for filing complaints before the
various fora was governed by the Indian
Limitation Act. However, in 1993, Section
24A was introduced, which specifies the
Limitation period.
As
per Section 24 A, the limitation period
for filing a complaint before the
District, State or National Commission is
two years from the date on which the cause
of action arises. However, as mentioned
earlier the fora have the power to condone
the delay if they feel that there was
sufficient cause for the same. The reasons
for condoning the delay has to be
mentioned in the records.
Is
there any Court fees ?
In
a civil court, the suit is not
maintainable unless and until the
requisite court fee as per the Court Fees
and Suit Valuation Act is affixed on the
same. The Consumer Protection Act has done
away with the requirement of a court fee.
Hence, a complaint can be filed in any of
the Fora without paying any court fees,
which is very advantageous, unlike in the
case of civil courts, where if the
compensation being claimed is high,
proportionate amount has to be paid as
Court Fees.
However,
to check that the bona fide complainant is
not dragged into an appeal, vide rule 5 of
the Supreme Court (First Amendment) Rules,
1990, for an appeal under Section 23 of
the Consumer Protection Act before the
Supreme Court, a fixed court fee of
Rs.250/- is payable. There is no court fee
for an appeal to the State Commission
against the order of the District Forum
and to the National Commission against the
order of the State Commission.
What
is the procedure to enforce orders of
consumer fora ?
The
District Forum, State Commission and the
National Commission have the power to
execute the orders passed by them in the
same manner in which a Civil Court
executes a decree. If they are not able to
enforce the order, it can be sent to the
court within the local limits of whose
jurisdiction, in the case of a company,
the registered office of the company is
situated or in the case of an order
against any other person, the place where
the person concerned ordinarily resides or
carries on business or personally works
for gain is situated. On receipt of such
order, the Court to which the order is
sent has to execute it as if it is a
decree or order sent to it for execution.
Is
there any remedy is a frivolous or
vexatious complaint is filed ?
If
the District Forum, State Commission or
the National Commission finds that a
complaint is frivolous, they have the
power to dismiss the complaint, but they
have to give valid reasons for the same.
Further, the complainant may be ordered to
pay the costs, not exceeding Rupees Ten
Thousand.
Are
there any penalties recognized by the Act
?
Where
a person against whom a complaint is made
or the complainant fails to comply with
the order of the District Forum, State
Commission or the National Commission,
such person may be imprisoned for a term
which shall not be less than one month,
but which may be extend to three years, or
with fine which shall not be less than two
thousand rupees, but which may extend to
ten thousand rupees or both.
