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CONSUMER OF SERVICE

QUESTION BANK

Q.1. Discuss the term ‘Service’ as defined under the Consumer Protection Act. 2019 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

1. Housing Services.

2. Medical Services.

3. Professional Services.

4. Public Utilities.

5. Transport Services.

SYNOPSIS

I. DEFINITIONS:-

(1) DEFINITION OF THE TERM SERVICE (S.2 (42)):-

(2) DEFINITION OF THE TERM ‘DEFICIENCY S.2 (11):-

II. 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) Homoeopath practising Allopath/ Violation of statute.

(vi) Free services in Government Hospitals; Hospital not liable-

c) The Duty to Treat (Emergency Medical Aid)-

(2) Lawyer’s services:-

III. PUBLIC UTILITIES.

(1) Supply of Electricity:-

(a) Cases of deficiencies in service.

(i) Wrongful disruption.

(ii) Illegal disconnection.

(iii) Compensation for the supply of defective meters.

(iv) Compensation for voltage fluctuation.

(2) Telephone Services.

(a) Cases of deficiencies in postal service.

(i) Delay in the installation of a telephone.

(ii) Overbilling.

(iii) Disconnection without notice.

(iv) Right to get the Telephone Directory.

(3) Postal Services:-

(a) Cases of deficiencies in service.

(i) Liability for the delay.

(ii) Mis-delivery of a money order.

(iii) Liability for non-delivery of Speed Post.

(4) Housing Services:-

(a) Cases of deficiency in housing services.-

(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) Dishonour of draft.

(ii) Loss of valuables from a locker.

(iii) Honouring of the cheque contrary to instructions.

I. DEFINITIONS:-

(1) DEFINITION OF THE TERM SERVICE (S.2 (42)):-

"Service" means service of any description which is made available to potential users and includes, but is not limited to, the provision of facilities in connection with:

-Banking, financing, insurance, transport, processing, or supply of electrical or other energy;

-Boarding or lodging or both, housing construction, entertainment, amusement;

-The purveying of news or other information.

Exclusions: It does not include the rendering of any service free of charge or under a contract of personal service.

(2) DEFINITION OF THE TERM ‘DEFICIENCY S.2 (11):-

‘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-

A profession is an occupation requiring specialised intellectual or manual skill; thus, painting, sculpture, architecture, engineering, law, and medicine are recognised professions.

A profession differs fundamentally from other occupations centred on producing, selling, or distributing goods. Because a professional's success is not guaranteed in every scenario, outcomes are often beyond their direct control. For example, winning or losing a lawsuit depends more on the available evidence than a lawyer’s skill alone; similarly, a surgeon's success depends on variables beyond their surgical technique. Therefore, professionals are held to a standard of reasonable care and competence, which casts a high level of duty and responsibility upon them.

Below, we will discuss the specific duties of medical and legal professionals, as well as their liability for negligence.

(1) Medical Services.

In a landmark judgment, the Indian Medical Association V/s. V. P. Shantha and others. The Supreme Court established that medical services fall under the jurisdiction of Consumer Commissions. Therefore, in the event of a deficiency in the performance of medical services, the consumer court shall have jurisdiction..

(a) Tests of determining medical negligence:-

Nowadays, it is settled law that a medical practitioner is liable if his mistake is of such a nature as to imply the absence of reasonable skill and care. Reasonable skill and care are determined based on the ordinary level of skill in medical practice.

A mistaken diagnosis is not necessarily a negligent diagnosis.

In Hatcher V/s. Black

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:-

A medical practitioner is only liable if their mistake implies an absence of reasonable skill and care expected of an ordinary practitioner in that field.

(i) Foreign matter left in the body.

In Nihal Kaur V/s. Director P.G.I, Chandigarh

Facts- The doctor operated on the patient after a splenic abscess was diagnosed. Doctors informed 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 the body.

Held—The surgeon was held liable for gross negligence; compensation of ₹1,20,000 was awarded.

(ii) Brain damage:-

In Harjot Shluwalia V/s. Spring Meadows Hospital

Facts- A minor was administered an intravenous chloroquine injection by an unqualified nurse without a sensitivity test. The child suffered cardiac arrest, and due to the lack of an oxygen cylinder, suffered permanent, irreparable brain damage.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

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 who could not pass urine normally and had become impotent.

Held- the Doctor held grossly negligent, and the Court awarded compensation of Rs. 8 lakh.

(iv) Failure of vasectomy operation.

In S. Sharma V/s. State of U.P.

Facts: - A woman became pregnant after her husband underwent a vasectomy operation.

Held: The State was held liable because the doctor failed to exercise reasonable care and caution during the surgery.

(v) Homoeopath practising Allopath/ Violation of statute.

In Poonam Verma V/s. Ashwin Patel

Facts- A registered homoeopathic doctor prescribed strong allopathic medicines to a patient, leading to the patient's death.

Held- The Doctor had trespassed into a prohibited field by giving allopathic treatment, for which he had no qualification or registration certificate to practice and hence violated the Medical Council Act 1956. Therefore, the doctor was held negligent.

(vi) Free services in Government Hospitals; Hospital not liable-

c) The Duty to Treat (Emergency Medical Aid)-

In Parmanand Katar V/s. Union of India

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.

The Supreme Court held that it is a professional obligation of all doctors, whether government or private, to extend medical aid to the injured immediately to preserve life without waiting for the police to comply with legal formalities.

(2) Lawyer’s services:-

In a landmark judgment of the Supreme Court of India, In Bar of Indian Lawyers v. D.K. Gandhi PS National Institute of Communicable Diseases (2024) (often associated with the Bar of Indian Joint Action Committee and other clubbed petitions), was decided by the Supreme Court.

This judgment put an end to a nearly two-decade-long debate that began in 2007 when the National Consumer Disputes Redressal Commission (NCDRC) in the same case had ruled that dissatisfied clients could sue their lawyers in consumer courts for a "deficiency of service."

Facts- A client (Mr. D.K. Gandhi) hired an advocate (Mr. Mathias) to file a criminal complaint under Section 138 of the Negotiable Instruments Act for a bounced cheque worth ₹20,000.

Alleged misconduct- During the proceedings, the accused party settled the matter and handed a Demand Draft of ₹20,000 and a crossed cheque of ₹5,000 (intended for the client) to the advocate. The client alleged that the advocate handed over the ₹20,000 but withheld the ₹5,000 cheque, demanding an additional ₹5,000 in cash as professional fees. The advocate claimed this money was his legitimate legal fee.

The Legal Action: Aggrieved by this, the client filed a complaint against his lawyer in the District Consumer Forum for "deficiency of service."

The Issue before the court was whether professional legal services fall under the scope of the Consumer Protection Act.

The District Consumer Forum decided that it has jurisdiction and that the matter falls under the Consumer Protection Act. The State Commission reversed the decision. The National Consumer Disputes Redressal Commission (NCDRC) upheld the decision of the District Forum. It caused widespread concern among the Advocae community. The Advocates’ Associations also intervened in the matter and represented the matter before the Supreme Court.

The Supreme Court held that advocates cannot be sued under the Consumer Protection Act (CPA) for a "deficiency of service”, taking into consideration the unique nature of their profession. The Supreme Court emphasized that an advocate owes a dual duty. Their primary allegiance is to the Court to ensure the administration of justice, and only secondarily to the client. Because an advocate cannot blindly follow a client's instructions if they violate legal or ethical boundaries, they cannot be treated as a standard commercial service provider.

It futhrer held, that although advocates are immune from consumer court jurisdiction, they do not hold absolute immunity from wrongdoing and remain legally accountable through three alternative channels (i) they can face disciplinary action—including the suspension or permanent revocation of their license—by the State Bar Council under the Advocates Act, 1961 for professional misconduct; (ii) they can be sued for monetary damages in civil courts under tort law for professional negligence; and (iii) they can be criminally prosecuted for actions involving fraud, cheating, or criminal breach of trust.

III. PUBLIC UTILITIES.

The following public utilities come under the jurisdiction of Consumer Forums.

(1) Supply of Electricity:-

The electricity supply is a '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.

(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

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

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- the 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.

(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..

(ii) Overbilling.

In Union of India V/s. Nilesh Agrawal

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.

(iv) Right to get the 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..

(ii) Mis-delivery of a money order.

In Sub-Post Master, Rewari V/s. Vinod Kumar Saxena

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..

(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..

(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..

(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..

(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..

(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.