(..13..)
SERVICE[1]
QUESTION BANK
Q.1. Discuss the term ‘Service’ as defined under the Consumer Protection Act.1986 with special reference to medical services.
Q.2. Define ‘Service’. What type of services has been brought within the ambit of the Consumer Protection Act?
Q.3. What is ‘deficient service’ according to the Consumer Protection Act? What types of professional services have been brought within the ambit of the Consumer Protection Act?
Q.4. What is ‘deficient service’ according to the Consumer Protection Act? What types of public utility services have been brought within the ambit of the Consumer Protection Act?
SHORT NOTES
- Housing Services.
- Medical Services.
- Professional Services.
- Public Utilities. 5. Transport Services.
SYNOPSIS
- DEFINITIONS:-
(1) DEFINITION OF THE TERM SERVICE (S. 2 (1) (o)):-
(2) DEFINITION OF THE TERM ‘DEFICIENCY’ S.2 (1) (g):-
- PROFESSIONAL SERVICES.
(1) Medical Services.
(a) Tests of determining medical negligence:-
(b) Cases of medical negligence:-
(i) Foreign matter left in the body.
(ii) Brain damage:-
(iii) Penis cut off-
(iv) Failure of vasectomy operation.
(v) Homeopath practicing Allopath/ Violation of statute.
(vi) Free services in Government Hospital; Hospital not liable.
(c) Denial of medical services.
(2) Lawyer’s services:-
(Note- “Lawyers Services” is deleted from Shivaji University Syllabus)
- a) The duties of a lawyer towards Court:-
1) Duty to respect.
2) Duty to attend the Hearing:-
3) Duty to Receive Judgment:-
4) Duty to assist Court:-
5) Duty not to Exhibit Friendship:-
6) Duty to have a Good Temper:-
7) Duty not to malign Judge:-
8) Duty not to mislead the Court:-
- b) The duties of a lawyer towards his client:-
1) Accept Brief:-
2) Not to withdraw from engagements-
3) Duty in case of the witness himself-
4) Full and frank disclosure of his relations:-
5) Uphold interest of his client:-
6) Not to lead conviction of innocent:-
7) Duty of confidence and liability for negligence and misconduct:-
III. PUBLIC UTILITIES.
(1) Supply of Electricity:-
(a) Cases of deficiencies in service.
(i) Wrongful disruption.
(ii) Illegal disconnection.
(iii) Compensation for supplying defective meter.
(iv) Compensation for voltage fluctuation.
(2) Telephone Services.
(a) Cases of deficiencies in services.
(i) Delay in the installation of the telephone.
(ii) Overbilling.
(iii) Disconnection without notice.
(iv) Right to get Telephone Directory.
(3) Post Services:-
(a) Cases of deficiencies in service.
(i) Liability for the delay.
(ii) Mis-delivery of Money order.
(iii) Liability for non-delivery of Speed Post.
(4) Housing Services:-
(a) Cases of deficiencies in service.
(i) Delay in handing over possession of the house allotted.
(ii) Construction not according to an agreement.
(iii) Abandonment of Housing Scheme.
(iv) Allotment of disputed plots.
(5) Banking Services.
(a) Cases of deficiencies in service.
(i) Dishonor of draft.
(ii) Loss of valuables from a locker.
(iii) Honoring of Cheque contrary to instructions.
I. DEFINITIONS:-
(1) DEFINITION OF THE TERM SERVICE (S.2 (1) (o)):-
‘Service’ means ‘service of any description which is made available to potential user and includes the provisions or facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service’.
(2) DEFINITION OF THE TERM ‘DEFICIENCY[2] S.2 (1) (g):-
‘Deficiency’ means –
(i) Any fault, imperfection, shortcoming, or inadequacy,
(ii) in the quality, nature, and manner of performance,
(iii) which is required to be maintained by or under any law for the time being in force- or which has been undertaken to be performed by a person in pursuance of a contract or otherwise- in relation to any service.
Services may be classified as ‘Professional Services’, ‘Utility Services’, ‘Commercial Services’, etc. In this topic, we will study ‘Professional Services’ and ‘Utility Service’. ‘Commercial Services are discussed in the next topic.
II. PROFESSIONAL SERVICES[3]–
The profession involves an occupation requiring either purely intellectual skill or manual skill; thus, painting and sculpture, architects, engineers, lawyers, and medical practices are professions.
Profession differs from other occupations of producing, selling, or distributing goods. In a sense, in the profession, success cannot be achieved in every case, and often, success or failure is beyond the control of a professional man. For example, winning or failing a case depends more on evidence than a lawyer’s skill, and so does the case with the surgeon. Hence, reasonable care and competence are expected from them. Hence, a high level of duty is cast upon a professional man.
In this paper, we will discuss the duties of medical and lawyer professionals and their liability for negligence.
(1) Medical Services.
The Court holds that the patient is a ‘consumer’ and that medical assistance is a service. Therefore, in the event of deficiency in the performance of medical services, the consumer court shall have jurisdiction.[4].
(a) Tests of determining medical negligence:-
Nowadays, it is settled law that a medical practitioner is liable if his mistake is such a nature as to imply the absence of reasonable skill and care. Reasonable skill and care are decided by regard to the ordinary level of skill in medical practice.
A mistaken diagnosis is not necessarily a negligent diagnosis.
In Hatcher V/s. Black[5]
Lord Denning observed- that the Court must not find the Doctor negligent simply because one of the risks present in the operation took place or because, in a matter of opinion, he made an error in diagnosis. The court should find him guilty only when he has fallen short of reasonable medical care.
Where the medical practitioner is guilty of negligence per se, no further proof is needed.
b) Cases of medical negligence:-
(i) Foreign matter left in the body.
In Nihal Kaur V/s. Director P.G.I, Chandigarh[6]
Facts– Doctor-operated patient after Splenic Abscess was diagnosed. Doctors informed me that the operation was successful. However, soon after, a patient developed trouble and died. ‘Scissors’ utilised by the surgeon were found in the last remains after the cremation of a body.
Held—The surgeon’s negligence in allowing the scissors to remain in the body resulted in compensation of Rs.1, 20,000 being granted.
(ii) Brain damage:-
In Harjot Shluwalia V/s. Spring Meadows Hospital[7]
Facts– A minor, the only child of his parents, had a high fever and, therefore, was brought to the Hospital. An unqualified nurse administered certain medicines and intravenous chloroquine injections without a prior test. Immediately thereafter, the child collapsed and suffered cardiac arrest. No oxygen was given as the gas cylinder was not available. The child suffered irreparable brain damage and had to remain in bed for his remaining life.
The National Commission held that the hospital had a service deficiency and awarded 12.5 lakh compensation.
(iii) Penis cut off-
In C. Sivakumar V/s. Dr John Arthur[8]
Facts– the complainant had difficulty in passing urine. The Doctor cut off his penis without any justification. The complainant was a 23-year-old boy of 23 years who could not pass urine normally and had become impotent.
Held– awarded compensation of Rs. 8 lakh.
(iv) Failure of vasectomy operation.
In S. Sharma V/s. State of U.P[9].
Facts: – A wife of a person who has undergone a vasectomy operation remained pregnant due to a negligent operation by a doctor.
Held: The state is liable because the Doctor has not taken reasonable care and caution while operating.
(v) Homeopath practising Allopath/ Violation of statute.
In Poonam Verma V/s. Ashwin Patel[10]
Facts– the defendant’s doctor was a registered homoeopath who qualified in homoeopathic medicine and surgery. The Doctor administered allopathic drugs to the patient, and consequently, the patient died.
Held– The Doctor had trespassed into a prohibited field by giving allopathic treatment, for which he did not have any qualifications or registration certificate to practice and hence violated the Medical Council Act 1956.
(vi) Free services in Government Hospitals; Hospital not liable[11]–
c) Denial of medical services-
In Parmanand Katar V/s. Union of India[12]
Facts—The complainant filed a writ petition regarding the disparaging practice of not admitting patients and not providing medical assistance unless documentary compliance is made in Government Hospitals and Private Hospitals.
Supreme Court held that it is the professional obligation of all doctors, whether governmental or private, to extend medical aid to the injured immediately to preserve life without waiting for police to comply with legal formalities.
(2) Lawyer’s services:- (Note- “Lawyers Services” is deleted from Shivaji University Syllabus)
Services rendered by lawyers are also the subject of the Consumer Protection Act. Therefore, deficiency in providing the services of a lawyer is actionable in the Consumer Forum.
a) The duties of a lawyer towards Court:-
Advocates are an integral part of the machinery of the administration of justice. Therefore, he is described as an officer of justice and a friend of the Court. However, his status as an officer of justice does not mean he is subordinate to the Judge. He, however, owes certain duties to the Court irrespective of his success or failure.
1) Duty to respect-
Being always respectful to the Court is the foremost and most important duty of a lawyer. The advocate, no doubt, should be bold, fearless, and independent in the Court, and at the same time, he must not be disrespectful to the Court and the Judge.
2) Duty to attend the Hearing:-
A lawyer should attend the Hearing of the case.
3) Duty to Receive Judgment:-
An advocate should be present in court to receive judgment.
4) Duty to assist Court:-
An advocate must not forget that his main duty is to assist the Court in the right direction and in coming to the right finding.
5) Duty not to Exhibit Friendship:-
It is awful for a lawyer to tell his client that the judge is his friend or familiar with him.
6) Duty to have a Good Tamper:-
A lawyer should not lose his temper in or outside the Court.
7) Duty not to malign Judge:-
A lawyer should not make any statement that will malign the great office of a Judge.
8) Duty not to mislead the Court:-
A lawyer should win the confidence of the Court and be trusted by the Judge. He should not mislead the Court.
b) The duties of a lawyer towards his client:-
In India, the relationship between a lawyer and his client is a matter of contract. The relation is in the nature of agent and principle. However, trust and confidence between them are also necessary. Following are some of the duties of an advocate toward his client, as prescribed by the Bar Council of India.
1) Accept Brief:-
An advocate is bound to accept any brief in the courts or tribunal or before an Authority.
2) Not to withdraw from engagements-
An advocate shall not withdraw from engagements once accepted.
3) Duty in case of the witness himself-
A lawyer should not accept a brief or appear in a case where he has reason to believe he will be a witness.
4) Full and frank disclosure of his relations:-
An advocate should make all such full and frank disclosures to his client relating to his connection with the parties at the commencement of his engagement and during the continuance thereof.
5) Uphold the interest of his client:-
It shall be the duty of an advocate, fearlessly, to uphold his client’s interests by all fair and honourable means without regard to any unpleasant consequences to himself or any other person.
6) Not to lead to conviction of innocent:-
An advocate appearing for the prosecution in a criminal trial shall conduct the prosecution so that it does not lead to a conviction of the innocent.
7) Duty of confidence and liability for negligence and misconduct: – (Discussed in an end note)
III. PUBLIC UTILITIES.
The following public utilities come under the jurisdiction of Consumer Forums.
(1) Supply of Electricity:-
The electricity supply is ‘service’, which falls under the jurisdiction of Consumer Forums. The Consumer Protection Act expressly declares electricity supply as a ‘service’, and the person receiving the electricity supply is a consumer. Hence, if any service deficiency is found, a consumer receiving electricity supply for consideration has locus standi (right to sue). The supply of electricity is a supply of services and not a sale of goods[13].
(a) Cases of deficiencies in service.
Electricity supply services are generally held by Public Corporations, i.e., by Government agencies; still, they are held liable under the Act by the Forum.
(i) Wrongful disruption.
In Harinaya S.E.B. V/s. T.R. Poultry Farm[14]
Facts—The transformer supplying electricity to the complainant’s poultry farm had burned. But for the next 25 days, it could not be replaced or repaired; consequently, the poultry farm’s electricity remained unsupplied. As a consequence, 3080 birds from the poultry farm died.
Held– Compensation of Rs.75000 allowed.
(ii) Illegal disconnection.
In H.S.E.B. V/s. Naresh Kumar[15]
Facts—The electricity supply to the complainant’s Mill was illegally suspended for two months, resulting in a loss of Rs. 50000 to the complainant.
Held– State Commission awarded compensation of Rs. 50,000 and Rs. 2000 as a cost of the proceeding.
(iii) Compensation for the supply of defective meters[16].
(iv) Compensation for voltage fluctuation.
(2) Telephone Services.
Telephone service is the ‘service’ falling under the jurisdiction of Consumer Forums. The government department also supplied telephone services but has now been privatised. Any deficiency in telephone service provides locus standi to the complainant for filing a complaint against the service provider.
(a) Cases of deficiencies in postal service.
(i) Delay in the installation of a telephone.
A delay in installing a telephone connection is a deficiency in service.[17].
(ii) Overbilling.
In Union of India V/s. Nilesh Agrawal[18]
The State Commission held that the complainant, who is a subscriber, is a ‘consumer’ and that the telephone service provided by the Telecom Department is a ‘service’ for which he pays rent. Hence, overbilling a telephone is a ‘deficiency in service’ within the meaning of the Act.
(iii) Disconnection without notice[19].
(iv) Right to get Telephone Directory.
(3) Postal Services:-
Postal services are the ‘services’ under the definition of the Act. Hence, if the service rendered by the Postal Department suffers from a deficiency in any respect, the consumer is entitled to file a complaint under the provisions of the Consumer Protection Act and seek appropriate relief.
(a) Cases of deficiencies in service.
(i) Liability for the delay.
The post office is liable for delays caused by its employees’ negligence in delivering telegraphic money orders on time. Therefore, it cannot claim immunity from liability under the provisions of the Post Office Guide.[20].
(ii) Mis-delivery of Money order.
In Sub-Post Master, Rewari V/s. Vinod Kumar Saxena[21]
Facts—The complainant sent a Rs. 400 money order, which was misdelivered to someone other than the addressee. The appellant contended that under S.48 of the Indian Post Office Act.1898, an exemption had been granted from any suit or legal proceedings in respect of the wrong payment of a money order caused by incorrect or incomplete information given by the remitter as to the name and address of the payee.
Held– The State Commission held the Post Department liable.
(iii) Liability for non-delivery of Speed Post.
The post office is liable for the non-delivery of articles dispatched by Speed Post.[22].
(4) Housing Services:-
In India, several crores of people are without houses. Providing houses to them is a crucial problem. The Government constitutes several Housing Boards to provide cheaper and stronger houses. Moreover, private builders also provide houses. Houses are a very near and dear subject of every human being. Hence, any deficiency in housing service is actionable in the Consumer Forum.
(a) Cases of deficiency in housing services.-
(i) Delay in handing over possession of the house allotted.
A person who applies for a plot in a scheme and deposits earnest money is a consumer who has hired services for consideration and is competent to approach the Forum for relief for the deficiency in service.[23].
(ii) Construction not according to an agreement.
Where the Housing Board uses poor-quality materials for construction or does not provide roads, schools, parks, etc., as promised under the scheme of selling its houses, it will amount to a deficiency in service.[24].
(iii) Abandonment of Housing Scheme.
If the scheme is abandoned after promising and receiving money from the consumer, it is a deficiency in service, and the authority is liable.[25].
(iv) Allotment of disputed plots.
When the plots allotted for house construction were in litigation, thereby causing considerable expenditure and harassment to the allottees, it would amount to gross deficiency in service.[26].
(5) Banking Services.
A bank customer is a ‘consumer’ under the Act, and services provided by the bank are the ‘services’ falling under the definition of a service. Any deficiency in service makes the banker liable.
(a) Cases of deficiencies in service.
(i) Dishonor of draft.
A bank wrongfully refusing to encash a draft or cheque is liable for deficient services under the Act.[27].
(ii) Loss of valuables from a locker.
The banker is liable for the loss of valuables from the locker.
In Allahabad Bank, Bhopal v/s Ranbir Singh Bhadoria.[28]
(AIR 2006 (NOC) 632 (NCC)
Held- The Bank is liable for stealing articles from its lockers.
(iii) Honoring of Cheque contrary to instructions.
Honouring a cheque contrary to the consumer’s instructions is a deficiency in service.[29].
NOTE
ADVOCATES DUTY OF CONFIDENCE AND LIABILITY FOR NEGLIGENCE AND MISCONDUCT:-
The relationship between an advocate and his client is fiduciary. It is of confidential nature, requiring a high degree of fidelity and good faith.
In V. C. Rangadurai V/s. D. Gopalan[30]
Justice Sen observed that the relationship between the advocate and his client is purely personal and involves the highest personal trust and confidence.
An advocate is not merely an agent or servant of his client but more than that. We will discuss some rules prescribed by the Bar Council of India in this direction-
Rule 14 Some rule prescribed and discussed by the Bar Council of India in this direction makes it clear that an advocate shall, at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosure to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgment in either engaging him or continuing the engagement.
Rule 15 provides that it shall be an advocate’s duty to fearlessly uphold his client’s interests by all fair and honourable means without regard to any other person.
Rule 22 provides that an advocate shall not, directly or indirectly, bid for or purchase, either in his own name or in any other name, for his own benefit or the benefit of any other person, any property sold in the execution of a decree or order in any suit, appeal or other proceedings in which he was in any way professionally engaged. This prohibition, however, does not prevent an advocate from bidding for or purchasing for his client any property that his client may himself legally bid for or purchase, provided the advocate is expressly authorised in writing on this behalf.
Rule 24 makes it clear that an advocate shall not do anything whereby he abuses or takes undue advantage of the confidence reposed in him by his client.
In P.D. Gupta V/s. Ram Murti[31]
Facts—An advocate purchased the property at a throw-away price from his client, which was the subject of litigation. Doubt was cast on the client’s title to the property, and the advocate was aware of this fact. He sold the property to a third person and made a profit.
Held– he was held guilty of professional misconduct.[32].
Rule 17, prescribed by the Bar Council of India under the Advocate’s Act, provides that an advocate shall not commit (directly or indirectly) a breach of the obligations imposed by S. 126 of the Indian Evidence Act. This section provides in relation to professional communication. According to this section, no barrister, attorney, pleader, or vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment.
Provided that nothing in this section shall protect from disclosure-
(1) any such communication made in furtherance of any illegal purpose;
(2) any fact observed by any barrister, pleader, attorney, or vakil during his employment shows that any crime or fraud has been committed since his employment.
It is immaterial whether the attention of such barrister, pleader, attorney, or vakil was directed or not to such fact by or on behalf of his client. Explanation to S.126 of the Advocates Act makes it clear that the obligation stated in this section continues after employment has ceased.
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[1] सेवा [ सर्विस ]
[2] सेवेतील त्रुटी [ सेवा त्रुटियां ]
[3] व्यवसाईक सेवा [ व्यापारिक सेवाएं]
[4] Vasantha P. Nair V/s. Smt. V. P. Nair I. (1991) C.P.J. 685
Indian Medical Association V/s. V. P. Shantha and others III (1995) C.P.J. I. (SC)
[5] (Quoted in (1992) 1 CPR 41
[6] III (1996) CPJ 112
[7] II (1997) C.P.J. 98 (N.C)
[8] III (1998) CPJ 436
[9] AIR 2000 All 219
[10] AIR. 1996 Supreme Court 2111
[11] In Paramijit Kaur v. State of Punjab (II (1997) CPJ 394)
Facts– The patient was operated on in a Government Hospital free of charge for family planning. Subsequently, she gave birth to a female child.
Held– the complaint was dismissed since she was not a consumer fitting in the definition because services were offered free of charge.
[12] . (AIR 1989 SC 2039)
[13] State Electricity Board v. Dinesh Kumar (1991) II CPR 232
[14] II (1996) C.P.J. 15 (N.C)
[15] II (1996) C.P.J. 306 (N.C)
[16] In Gita Rani Chakroborty V/s. S.S.B. W.B.E.B. ( I (1997) C.P.J. 450
Facts-The defective electricity meter has not been replaced in spite of repeated reminders by the complainant.
Held– deficiency in service
[17] Held in Telephone Jalandhar V/s. Om Prakash III (1996) C.P.J. 479
[18] (1991) 1 CPR 23
[19] In Madhav Vinayak Rajwade V/s. Mahangar Telephone Nigam Ltd. (1994) I CPJ 546
Held– there may be several reasons for non-payment of telephone bill such as illness, absence for a temporary period, non-receipt of the bill, etc. and it is, therefore, essential that notice should be given to the subscriber specifying the time within which he should pay, failing of which the telephone may be disconnected.
[20] Surender Singh v. Post Master General, Punjab, (1991) 1 CPR 430
[21] (1996)I CPR 444
[22] Post Master V/s. G. Hanumamtha Reddy (1993)
[23] J.P. Singh V/s. Improvement Trust (1993) II CPR 67
[24] The Chandresekharpur Housing Board Colony V/s. State of Orissa (1992) 1 CPR 532
[25] In George Thomas V/s. Ghaziabad Development Authority (1999) I CPJ 18
[26] In B.N. Vankatesh Murty V/s. Banglore Development Authority (1998) II CPJ 8
[27] N. Raveendran Nair V/s. State Bank of India (1991) II CPJ 258
[28] In K.B. Shetty V/s. Punjab National Bank (1991) 1 CPR 125
Facts– the loss of jewelry is caused by the locker due to the negligence of the Bank employees.
Held– Bank is liable.
[29] Bhandari Co-operative Bank Ltd V/s. Dilip Madhukar Kambli (1996) I CPR 1 (NCDRC)
[30] AIR 1979 SC 281
[31] AIR 1998 SC 283
[32] In Deshpande V/s. Bar Council of India (AIR 2003 SC 308)
Facts- the appellant advocate took advantage of the situation that the complainants facing the death sentence and obtained the power of attorney on mistake-representation in his favor and sold the property of the complainants. Besides, the appellant advocate fraudulently appropriated the sale proceeds for his gain.
Held- that he held that he had committed grave professional misconduct.