cpa

Consumer Protection Act, 2019

The Consumer Protection Act, 1986 was enacted with the objective of providing better protection of the interests of the consumers by doing away away with technicalities and cumbersome procedures. It became an effective and a comparatively inexpensive and prompt tool for consumers to assert and enforce their rights and even have the confidence to take large corporations to the various consumer forum.

Consumer markets for goods and services have undergone drastic transformation since the enactment of the Consumer Protection Act in 1986. The emergence of global supply chains, rise in international trade and the rapid development of e-commerce have led to new delivery systems for goods and services and have provided new options and opportunities for consumers. At the same time, this has rendered the consumer vulnerable to new forms of unfair trade and unethical business practices. Misleading advertisements, tele-marketing, multi-level marketing, direct selling and e-commerce pose new challenges to consumer protection and will require appropriate and swift executive interventions to prevent consumer detriment. Therefore, it became inevitable to amend the Act to address the myriad and constantly emerging vulnerabilities of the consumers.

With the Lok Sabha passing the Consumer Protection Bill 2019 on 30.07.2019 after due consideration and discussion, the Rajya Sabha has also passed the same through a voice vote and the present bill will thus replace the Consumer Protection Act, 1986.

Keeping pace with changing times and new legislations aimed at protecting the interests en masse, the present bill has successfully broadened the scope of various provisions, including persons who can file a consumer complaint to also include class action. This would better protect the rights and interests of the consumers who are not legally equipped to fight for their rights.

HIGHLIGHTS:

1. Jurisdiction of the Commissions has been increased

Under the bill of 2019, the monetary relief/ compensation sought by the aggrieved consumer is based on the value of consideration “paid” for the product or service and not “claimed” by the consumer.

The Commissions are at District, State and National level and the pecuniary Jurisdiction of these three forums have been enhanced to

  1. District Commission –Up to Rs.1 crore
  2. State Commission- Between Rs.1 crore and Rs 10 crore
  3. National Commission –Above Rs.10 crore

The increase in the pecuniary jurisdictions of the Commissions is with the purpose to allow consumers to file complaints in district commissions as many small consumers find it difficult and costly to file a complaint in State Commission and National Commission. As a consequence, the doctors can expect patients to claim higher compensation against them because for compensation upto Rs. 10 Crores, he will not have to travel to Delhi now and can conveniently file a complaint in that State itself where he is residing.

2. Second, the aggrieved party can file the complaint even from where he/she resides unlike initially where it had to be filed where the seller or service provider is located. In other words, earlier if you had operated or treated a patient in Delhi, Bangalore or Gujarat, the patient could file a complaint only where the cause of action arose but CPA 2019 now allows consumers to file complaints in the district commission where they reside or work for gain.

3. Third, the CPA 2019 seeks to establish a central authority, the Central Consumer Protection Authority (“CCPA”) to promote, protect, and enforce the rights of consumers qua misleading advertisements and unfair trade practices as a class. Earlier the appointment of the members of the Commission had to be appointed by a State Judicial Committee. Now Central Government will appoint by a notification. Hence you can expect even a Politician to be on the Forum.

4.  Fourth, earlier in all Consumer Forums, one of the members on the bench had to be necessarily an ex-High Court or Supreme Court Judge. Under the new CPA, there may not be a single person who has any knowledge of law and hence you can expect more judgments on sympathy from now on.

5. Fifth, the doctor can be held liable to pay compensation under the new CPA even for misleading advertisements.

6. Sixth, if you fail to issue a bill or receipt to a patient for whatsoever reason, it will fall under the category of unfair trade practice and you would be liable to pay compensation under the Consumer Protection Act.

7. The doctor has to maintain the confidentiality of the information disclosed to him by the patient and in case if he fails to do so (except when required by law), he can face an action under the new CPA.

8. In addition to that, the CPA 2019 now provides for settlement of disputes by way of mediation in case there is a possibility of settlement at the stage of admission of complaint or at any later stage, if acceptable to both parties. Mediation cells have been attached to all the three commissions to facilitate the same, thereby meaning, matters shall be referred to mediation cells if the parties’ consent to it. In event of failure to settle the dispute, it would go before the respective forum/commission. Hence expect to go through a longer trial-first before mediation cell for settlement and then before the Forum, if this fails.

9. Also, the quantum of monetary penalty, in case of defiance of any order of commissions, have also been raised under the provisions of CPA 2019. Earlier if you did not comply with the orders of the Commission, you could face a jail term between one month and three years and a fine between Rs. 2000 to Rs. 10,000. Now you will face imprisonment of three years with a fine of not less than Rs. 25,000 and extendable to Rs. 1 lakhs.

10. Lastly, the deletion of Healthcare from definition of services:

The CPA 2019 does not explicitly specify healthcare in the list of services listed in the definition of ‘service’, following stiff opposition from the medical fraternity which expressed apprehension that the CPA 2019 would be misused against them.

However, it is pertinent to mention that the Government has reportedly stated that the Healthcare Amendment will not exempt healthcare services from the purview of the CPA 2019, in view of the order passed by the Supreme Court in case of Indian Medical Association v. VP Shantha (“VP Shantha Case”), wherein it had read healthcare into the definition of services under the CPA 1986. The Supreme Court in the VP Shantha case held that patients are consumers as long as they are making some form of payment for the medical service rendered. As a result, under the current consumer protection framework, a claim can be brought against doctors in case of deficiency of service.

CASE LAW

Dr. M. Kochar v. Ispita Seal

Complaint No. : 240/2001 of the State Commission Delhi

Order Dated: 12/12/2017 (NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI)

FACTS:

The patient, Mrs. Ispita Seal (Respondent), who had a past medical history of infertility with 2 ectopic pregnancies with right fallopian tube tube removed and other one intact, approached Dr. Kochar, Senior Consultant Obs. Gynae, Sir Ganga Ram Hospital after having infertility treatment for 6 years including treatment at AIIMS. Dr. Kochar, conducted laboratory investigations and hormonal assessment on the patient based on which suggested the patient to undergo IVF treatment for infertility. Accordingly, patient was treated for the same also Patient’s husband underwent SST examination at Dr. Raj Gur’s residence, who is a senior, experience embyologist working with Dr. Kochar. During the ET (embryo transfer) process Dr. Kochar informed the Patient about the vaginal infection and prescribed the medicines for the same. With the course of time, the test result came negative leaving the patient with one more failed pregnancy. As alleged by the respondents, Dr. Kochar never gave them appointment again to discuss the event.

ALLEGATIONS:

  1. Patient alleged that the entire procedure before ET, like diagnostic tests, ultrasound was performed by the lab staff in the absence of Dr. Kochar. Also the follicle development report was also not shown to the respondents inspite of consistent requests.
  2. Patient also alleged that her Husband’s SST examination was done at Dr. Raj Gur’s residence against their wish and in an unhygienic condition.
  3. Patient alleged the prescription mentioned that ”ET with difficulty”.
  4. Patient alleged of irreparable loss & permanent loss of chances of future pregnancy.
  5. Patient alleged that Dr. Kochar intentionally did the ET despite knowing about the failure of the procedure which has left them with mental shock and depression.
  6. Patient alleged that Dr. Kochar intentionally did the ET despite knowing about the failure of the procedure which has left them with mental shock and depression.
  7. Patient alleged the incidence of cheating and crime against woman and filed complaint before Delhi State Commission and prayed for refund of Rs. 66,702/- and charge of IVF Rs. 15,00,000/- on account of willful negligence.

Considering the pleadings, evidence and medical record, the State Commission allowed the complaint and directed the opposite party to pay Rs.15,00,000/- along with interest at the rate of 9% per annum from the date of filing of the complaint. Being aggrieved by the order of the State Commission, the opposite party preferred first appeal before this Commission.

DOCTOR’S DEFENCE:

  1. Dr. Kochar is a senior consultant with 20 years of practice in infertility with experience of work in US and UK.
  2. Patient never produced the documents of the previous treatments taken at various other infertility centres.
  3. She was duly informed about the success and failure rate of the IVF procedure.
  4. The medicine for the infection was prescribed for the prophylactic purpose, even otherwise presence of vaginal infection does not alter the pregnancy.

COURT HELD:

Considering the fact of patient’s past history of ectopic pregnancies twice with only 1 fallopian tube functioning, also due to lack of evidence of patient’s allegations against developed infection and unhygienic infrastructure of Dr. Raj’s residence where SST was performed and considering the expert medical opinion from RML Hospital, New Delhi, which has commented on the success rate of IVF, the National Commission in the case held that “No cure/ no success is not a negligence”, thus fastening the liability upon the treating doctor is unjustified.

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