Dr KK
Aggarwal & Advocate Ira Gupta
The Consumer
Protection Bill, 2018 was introduced in Lok Sabha on 05.01.2018 and the same
was passed in the Lok Sabha on 20.12.2018. Before introducing the said Bill,
the same would have been open for public discussions and suggestions. It is
very astonishing that when the Bill was open for public discussions and
suggestions, no association objected to the same. Even after the introduction
of the Bill in Lok Sabha, none of the association of any field objected to the
said Bill and now when the same has been passed by Lok Sabha, everybody is
criticizing it.
Even if any
association or any individual want to raise objection to the said Bill, then
the same should be done collectively by all industries as Consumer Protection
Bill is not only confined to medical or health care sector. It applies to all
industries and sectors and if all sectors raise their objections collectively,
only then will the Government consider their objections and suggestions.
One still
has time before the Bill is passed in Rajya Sabha.
Composition
of the Commissions could violate the principle of separation of powers
· The
District, State and National Consumer Disputes Redressal Commissions will
adjudicate complaints on defective goods and deficient services of varying
values. (Section 28, Section 42 and Section 53 of the Consumer Protection
Bill, 2018).
· District
Commissions have been given the powers of a civil court under Section 38 of the
Bill, 2018. The State and National Commissions act as appellate bodies on
the decisions of the District and State Commissions, respectively under Section
41 and Section 52 of the Bill, 2018.
· Appeals from
the National Commission will be heard by the Supreme Court under Section
67. Therefore, these Commissions are quasi-judicial bodies with the
National Commission being on par with High Courts.
· The Bill
specifies that the Commissions will be headed by a ‘President’ and will
comprise other members. However, the Bill delegates to the Central
Government the power of deciding the qualifications of the President and
members. In particular, the Bill does not specify that the President or
members should have minimum judicial qualifications. This is in contrast
with the existing Consumer Protection Act, 1986, which states that the District
Commission will be headed by a person qualified to be a District
Judge. Similarly, the State and National Commissions are headed by a
person qualified to be a High Court or a Supreme Court judge,
respectively. The 1986 Act also specifies the minimum qualification of
members. The earlier 2015 Bill too specified judicial members to head the
State and National Commissions, though it permitted the District Commission to
be headed by the district magistrate in addition to a person qualified to be a
district judge.
· If the
Commissions were to have only non-judicial members, it may violate the
principle of separation of powers, which is against the basic structure of the
Constitution of India.
Jurisdictions
of the Commissions have been increased
· These
Commissions will be set up at District, State and National level, with
pecuniary jurisdiction up to Rs one crore, Rs one crore to Rs 10 crore, and
above Rs 10 crore, respectively. In case of unfair contracts, the State
Commissions will hear complaints where the value is up to Rs 10 crore, and
National Commissions will hear complaints above that value. These
Commissions can declare unfair terms of such contracts to be null and void.
· 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.
· Though this
is in correlation to the pecuniary jurisdiction of the District Courts and High
Courts of the States but at the same time, this may lead to many complaints
being filed for each and every surgery and treatment undertaken by the doctor
or hospital as filing the complaint at the District Commission is still cheaper
than filling the complaint at the State Commission and National Commission.
Commissions
will dispose the complaint within 3 months
· The
Commissions will attempt to dispose a complaint within three months, if the
complaint does not require analysis or testing of commodities. If analysis and
testing is required, the complaint will be disposed within a period of five
months.
· There is no
provision as per which it is mandatory for the Commissions at all levels
(District, State and National) to have any judicial member and any medical
experts for scrutinizing medical negligence cases or any other case relating to
healthcare, in that situation there will be conflicting judgments and mostly
all judgments will suffer from understanding of the medical procedure and
treatment undertaken by the doctor.
· Moreover,
the period of 3 months and 5 months, in case of inquiry, is too less for any
person to understand the medical treatment and procedure, the medical
literature relating to the case, standard operating procedures followed by the
doctors etc.
· In such a
situation, State Commissions and National Commissions will be folded with more
appeals as compared to present day.
· This may in
turn affect the health sector drastically as the doctors and hospitals will be
more occupied with the complaints and appeals under the new Bill thereby
neglecting their other patients which is against the Constitution of India as
Right to health is a fundamental right under Article 21.
No provision
for frivolous and vexatious complaints
· There is no
provision in the Bill w.r.t. filling of the frivolous and vexatious complaints
which was present in 1986 Act under Section 26 of the Consumer Protection act,
1986 as per which the frivolous and vexatious complaints were to be dismissed
with penalty.
· In the
present Bill, 2018 there is provision for vexatious search being conducted by
Director General or any other officer but there is no provision for frivolous
and vexatious complaints.
· As there is
no provision against frivolous and vexatious complaints, all the commissions
i.e. District, State and National Commission will be flooded with many
frivolous and vexatious complaints as complaints does not have any fear of
penalty being imposed upon them for such frivolous and vexatious complaints.
Composition
and role of the Consumer Protection Councils
· The Bill
establishes Consumer Protection Councils (CPCs) at the district, state and
national levels, as advisory bodies. The Councils will advise on
promotion and protection of consumer rights. Under the Bill, the Central
Council and the State Council will be headed by the Minister-in-charge of
Consumer Affairs at the central and state level, respectively. The
District Council will be headed by the District Collector.
· The Bill
states that these bodies shall “render advice on promotion and protection of
consumer rights”. It is unusual for a body headed by a Minister or the
District Collector (who are implementing authorities) to be given an advisory
role. Further, the Bill does not specify whom the CPCs will render the advise
to whom.
· The 1986 Act
provides for such Councils but their role is to promote and protect consumer
rights (which is not an advisory role). The Bill has vested the Central
Consumer Protection Authority with this duty.
Some
Definitions need to be more explanatory
· Definition
of deficiency has changed which can invite more cases against doctors for even
small or post - surgery ailments on the point that doctor did not informed
about the post - surgery precautions or risks to the patients and his
relatives.
(11) “deficiency” 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 and includes— (i) any act of
negligence or omission or commission by such person which causes loss or injury
to the consumer; and (ii) deliberate withholding of relevant information by
such person to the consumer;
· The term
“illegally” has to be explained as whatever doctors do and practice as per
books and standard operative procedures, then he cannot be said to have acted
illegally which deciding whether injury has been caused to the complainant or
not under Section 2(23) of Bill, 2018 which is reproduced as:
(23) “injury” means any harm whatever illegally caused to
any person, in body, mind or property;
· The
definition of “service” includes healthcare which means every type of health
care is under the purview of Bill. 2018.
Dr KK
Aggarwal
Padma Shri Awardee
President
Elect Confederation of Medical Associations in Asia and Oceania (CMAAO)
Group Editor-in-Chief IJCP
Publications
President Heart Care
Foundation of India
Past
National President IMA
No comments:
Post a Comment