Present: Syed Mansoor Ali Shah, J.
SHAMSHAD HUSSAIN SYED, CHIEF PHYSICIAN,
W.P. No. 24729 of 2009, decided on 18.2.2010.
----Ss. 2(c), 2(k), 25 & 35--Scope of--Complaint against diagnostic centre--Jurisdiction of Consumer Court--Services rendered by petitioner were faulty and defective as diagnostic centre--Petitioner filed an application before Consumer Court--Application was dismissed--Application for appointment of Medical Board before Consumer Court from an impartial expert opinion on the status of Anti HCV was allowed--Challenge to--Question of jurisdiction--License issued to diagnostic centre to carry out exclusive pre-recruitment tests for persons visiting or being recruited for employment to GCC Countries--Petitioner/Medical Centre recorded that customer's Anti HCV was Reactive--Declared unfit to travel to GCC states--Validity--Customer is a consumer and the petitioner/doctor rendered services to the patient--Internal arrangement between the petitioner and GCC states did not in any way affect the jurisdiction of the Consumer Court--Petitioner had availed medical services after paying consideration and is, therefore, a Consumer under the Act and Consumer Court had the jurisdiction to try the complaint of petitioner/medical centre--Order on merit and had found the order to be in compliance with the provisions of Punjab Consumer Protection Act, 2005--Consumer Court has jurisdiction to entertain the instant complaint--Petition was dismissed. [P. 359] A, B & C
Mr. Rizwan Mushtaq, Advocate for Petitioner.
Mr. Muhammad Arshad Baig, Advocate assisted by Mr. Shahid Mahmood Aleem, Advocate for Respondent No. 2.
Date of hearing: 18.2.2010.
Brief facts are that Respondent No. 2 filed a complaint against the petitioner under Section 25 of the Punjab Consumer Protection Act, 2005 complaining that the services rendered by the petitioner to Respondent No. 2 were faulty and defective as the diagnostic centre of the petitioner, namely, Canal View Diagnostic Centre issued a wrong medical report dated 24.2.2009 recording that the Anti HCV of the petitioner was Reactive.
2. Thereafter, the petitioner filed an
application under Section 35 of the Punjab Consumer Protection Act, 2005
(`Act') before the
3. The sole contention raised by the petitioner
is that the
4. Mainstay of the argument of the petitioner was that as he is rendering these medical services under license for a specific purpose of recruitment to GCC States, he is not offering any, independent medical services to the public and Respondent No. 2 is not a walk in customer but a candidate who approached the petitioner as a part of his recruitment procedure and, therefore, is not a "Consumer".
5. On the other hand, the counsel for the
respondent submitted that irrespective of the internal arrangement between the
petitioner's Diagnostic Centre and the GCC States, Respondent No. 2 approached
the petitioner, who conducted his medical test and issued a medical report, which
is signed by the petitioner, dated 24.2.2009 wherein it has been shown that the
Anti HCV is Reactive (which in ordinary terms means that the petitioner has
Hepatitis C). He further submits that Respondent No. 2 paid the fee
(consideration) for obtaining the said medical report and, therefore, under the
Punjab Consumer Protection Act, 2005, Respondent No. 2 is a customer and,
6. Arguments heard. Record perused.
7. The license issued to the petitioner's Diagnostic Centre to carry out exclusive pre-recruitment tests for persons visiting or being recruited for employment to the GCC Countries is an internal arrangement of the petitioner and GCC States. As far as the instant matter is concerned, Respondent No. 2 approached the petitioner for a medical test. The respondent paid a fee and was issued a medical report signed by the petitioner (the counsel points out that the report was not directly issued to Respondent No. 2 but was sent to the Secretariat of GCC Countries). As a result of the medical report, wherein it was recorded that Respondent No. 2's Anti HCV was Reactive, Respondent No. 2 was declared unfit to travel to GCC States. It is useful to mention that Anti HCV is an antibody to the hepatitis C Virus. Its presence in the blood is indicative of an active or chronic Hepatitis C infection (source: www.answers.com).
8. In order to decide if Respondent No. 1 was a customer, it is important to understand the scope of the Punjab Consumer Protection Act, 2005. Preamble to the Act states:--
"Preamble. Whereas, it is expedient to provide for protection and promotion of the rights and interest of the consumers, speedy redress of consumer complaints and for matters connected therewith."
Indian Consumer Protection Act, 1986 has a similar preamble which states:--
"An Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith."
9. According to the Indian Supreme Court, the scope of the law has been explained in the following words:--
"According to the preamble, which can provide useful assistance to ascertain the legislative intention of the Act, the Act was enacted, to provide for the protection of the interest of consumers. Use of the word `protection' furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control the otherwise plain meaning of a provision. The Act meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. The importance of the Act lies in promoting welfare of the society by enabling the Consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, `a network of rackets' or a society in which producers have secured power to rob the rest and the might or public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The legislature has taken precaution not only to define `complaint', `Complainant', `consumer' but even to mention in detail what would amount to unfair trade practice by giving an elaborate definition in clause (r) and even to define `defect' and `deficiency' by clauses (f) and (g) for which a consumer can approach the Commission. The Act thus aims to protect the economic interest of a consumer as understood in the commercial sense, as a purchaser of goods and in the larger sense user of services. It is a milestone in history of socio-economic legislation and is directed towards achieving public benefit." (Reliance is placed on Lucknow Development Authority v. M.K. Gupta (AIR 1994 SC 787).
In Charan Singh v.
"The Consumer Protection Act is one of the benevolent pieces of legislation intended to protect a large body of consumers from exploitation. The Act provides for an alternative system of consumer justice by summary trial.
10. It is important to reproduce Section 2(c) of the Punjab Consumer Protection Act, 2005, which defines "consumer" :--
(c) "Consumer" means a person or entity who--
(i) buys or obtains on lease any product for a consideration and includes any user of such product but does not include a person who obtains any product for resale or for any commercial purpose; or
(ii) hires any services for a consideration and includes any beneficiary of such services," (emphasis supplied).
11. In the present case, the services of the petitioner were hired by Respondent No. 2, who paid consideration for the same. Section 2(k) of the Punjab Consumer Protection Act, 2005 defines "services" as:
"services" includes the provision of any kind of facilities or advice or assistance such as provision of medical, legal or engineering services but does not include--
(i) the rendering of any service under a contract service;
(ii) the rendering of non-professional services like astrology or palmistry; or
(iii) a service, the essence of which is to deliver judgment by a Court of law or arbitrator."
is, therefore, clear that Respondent No. 2 is a consumer and the petitioner
rendered services to the said respondent. The internal arrangement between the
petitioner and the GCC States does not in any way affect the jurisdiction of
12. I have also reviewed the impugned order on merit and have found the said order to be in compliance with the provisions of the Punjab Consumer Protection Act, 2005.
13. As the sole ground agitated before this Court
was regarding jurisdiction, it is held that the
(R.A.) Petition dismissed.