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Recently in the matter of ECGC Limited v. Mokul Shriram EPC JV [Civil Appeal No. 1842 of 2021] (hereinafter referred to as “Appeal”) decided on February 15, 2021, the Hon’ble Apex Court clarified that onerous pre-condition of payment of 50% of the amount awarded, in the event of filing of an appeal, will not be applicable to the complaints filed prior to the commencement of the Consumer Protection Act, 2019 (hereinafter referred to as “2019 Act”).

In the present Appeal, the Appellant had assailed order passed by the National Consumer Dispute Redressal Commission directing the Appellant to pay a sum of Rs. 265.01 Crores along with interest @ 10% p.a. to the Complainant. The complaint was filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (hereinafter referred to as “1986 Act”) on account of non-payment for invoices issued by the Complainant for the work done under the contract. The said complaint was allowed on 27.1.2021.

The issue arose out of an application filed by the Appellant before the Hon’ble Court in the said Appeal wherein the Appellant prayed to entertain the appeal as per the provisions of the 1986 Act. Therefore, the question before the Hon’ble Apex Court was whether the appeal would be governed under the 2019 Act or under the 1986 Act.

As per Section 67 of the 2019 Act, an appellant is required to deposit fifty per cent of the amount directed to be paid as a pre-requisite of filing the appeal. Under proviso to Section 23 of the 1986 Act, on the other hand, an appellant was required to pay fifty per cent of the amount or fifty thousand rupees, whichever is less.  It was contended on behalf of the Appellant in the application that the condition of deposit of 50% of the amount under the 2019 Act is more onerous than what was provided under the 1986 Act wherein an upper limit of Rs. 50,000/- was provided. The Appellant further relied upon Section 107 of the 2019 Act and Section 6 of the General Clauses Act, 1897. It was argued that unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed as per Clause (c) of Section 6 of the General Clauses Act, 1987. It was further contended that as per Clause (e) of section 6 of the General Clauses Act, 1987, the repeal shall not affect any  legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment which may be imposed as if the repealing Act or the Regulation has not been passed. It was submitted that as per the relevant provisions, the right to file an appeal under the 1986 Act has accrued in favour of the Appellant in terms of Clause (c) of Section 6 of the General Clauses Act at the time of filing of complaint.

In this regard it was hence pertinent to be examined by the Court what is the nature of right to appeal and when does it vest in the parties.

The Hon’ble Apex Court analysed the judgments cited by the Appellant. In Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh & Ors [AIR 1953 SC 221] a similar question w.r.t. the Central Provinces and Berar Sales Tax Act, 1947 was involved. The amendment made the pre-requisite for filing the appeal more onerous. In the said case it was held as quoted in the judgment also –

“The above decisions quite firmly establish and our decisions in Janardan Reddy v. State [(1950) SCR 941] and in Ganpat Rai v. Agarwal Chamber of Commerce Ltd. [(1952) SCJ 564] uphold the principle that a right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior court. In the language of Jenkins, C.J. in Nana bin Aba v. Shaik bin Andu to disturb an existing right of appeal is not a mere alteration in procedure. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication.”

It was further explained that “the pre-existing right of appeal is not destroyed by the amendment if the amendment is not made retrospective by express words or necessary intendment. The fact that the pre-existing right of appeal continues to exist must, in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. As the old law continues to exist for the purpose of supporting the preexisting right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can then be no question of the amended provision preventing the exercise of that right.”

The judgment was later approved by the Constitutional Bench in Garikapati Veeraya v. N. Subbiah Choudhry & Ors AIR 1957 SC 540. Applying the same principles in State of Bombay v. M/s. Supreme General Films Exchange Ltd. & Anr AIR 1960 SC 980, it was held that the court fees applicable on the Memorandum of Appeal was one that was applicable prior to the amendment of the Court Fees Act, 1870 and not as per the amendment in the Act. It was held, “It is thus clear that in a long line of decisions approved by this Court and at least in one given by this Court, it has been held that an impairment of the right of appeal by putting a new restriction thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.”

Similarly in K. Raveendranathan Nair & Anr. v. Commissioner of Income Tax & Ors (2017) 9 SCC 355 it was held that the relevant date for paying the court fee would be when the proceedings were initiated in the lowest court and not when the appeal was preferred.  Similarly, judgments in Ramesh Singh & Anr. v. Cinta Devi & Ors (1996) 3 SCC 142 and M/s Gurcharan Singh Baldev Singh v. Yashwant Singh & Ors. (1992) 1 SCC 428 with respect to the right of appeal as provided under the Motor Vehicles Act, 1939 which was repealed by Motor Vehicles Act, 1988, were also relied upon. The counsel for the Respondent, on the other hand, averred that the amendment is procedural in nature and thus always retrospective. The procedure includes the manner and form of filing of appeal, pre-deposit and limitation. [Thirumalai Chemicals Limited v. Union of India & Ors. 1 (2011) 6 SCC 739]. The Court, however, after considering the cases cited by the Respondent, held that the judgments were not applicable to the issues involved in the application. The Court, therefore concluded that onerous condition of payment of 50% of the amount awarded will not be applicable to the complaints filed prior to the commencement of the 2019 Act.

In a Public Interest Litigation No. 58 of 2021 [Medicos Legal Action Group v. Union of India], a Trust approached the High Court of Judicature at Bombay, to declare that services performed by healthcare service providers (“HSPs”) are not included within the purview of the Consumer Protection Act, 2019 (“2019 Act”) and to direct all consumer fora within the territorial jurisdiction of this Court not to accept complaints filed under the 2019 Act against HSPs. The Trust heavily relied on the parliamentary debates and statement of Minister for Consumer Affairs, Food and Public Distribution on the Consumer Protection Bill, 2018 that ‘healthcare’ had been deliberately kept out of the 2019 Act. Therefore, according to the Trust, since the 2019 Act having been brought into force upon repeal of the Consumer Protection Act, 1986 (“1986 Act”), registration of complaints, which are filed against doctors by the consumer fora in the State of Maharashtra are illegal.

The Court compared the definition of ‘service’ as given in Section 2(1)(o) of the 1986 Act and section 2(42) of the 2019 Act and observed that there is no material difference between the two and the only term added subsequently under 2019 Act is ‘telecom’.

The Court went on to observe that even in the 1986 legislation, the definition of ‘service’ did not include the services rendered by the doctors. However, the Hon’ble Supreme Court has held that the Consumer Act is applicable in case of services by a medical practitioner. The Court heavily relied on the landmark case of Indian Medical Association Vs. V. P. Shantha & Ors ((1995) 6 SCC 651) as a binding precedent where it was held that “Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1)(o) of the Act.”

In the matter of Indian Medical Association, the Supreme Court hadclarified that there is a difference between ‘contract of personal service’ and ‘contract for personal services’. According to the Court, “[I]n the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a ‘contract of personal service’. Such service is service rendered under a `contract for personal services’ and is not covered by exclusionary clause of the definition of ‘service’ contained in Section 2(1)(o) of the Act.”. To further bring clarity, it was held that the expression ‘contract of personal service’ in case of a medical practitioner will apply in case of employment of a medical officer for the purpose of rendering medical service to the employer. In such arrangement, “the service rendered by a medical officer to his employer under the contract of employment would be outside the purview of ‘service’ as defined in Section 2(1)(o) of the Act”.

The Court in Indian Medical Association also discussed various scenarios where the medical services may be given free of cost. Broadly, services` rendered – (i) free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody and (ii) at a Government hospital/health centre/dispensary or non-Government hospital/Nursing home, where no charge whatsoever is taken from any person availing the services, would not be “service” as defined in Section 2(1)(o) of the Act. This position shall remain as it is even if a token registration fee has been charged from the patients.

The Court further listed the scenarios where a medical service will fall within the purview of the expression ‘service’ under the 1986 Act. As a general rule, service rendered by hospitals/nursing homes where charges are required to be paid by the persons availing such services, will constitute a ‘service’ under the Act. However, the following services shall additionally fall within the definition – they are – (i) Service rendered at a Government and non-Government hospital/health centres/nursing homes where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge;  (ii) when services are availed by a person who is covered by an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company; and (iii) when the employer bears the expenses of medical treatment of an employee and his family members dependent on him.

While addressing the precise premise taken by the Trust, the Court referred to State of Travancore-Cochin vs. Bombay Co. Ltd. AIR 1952 SC 366  where in Justice Patanjali Shastri had made an acute observation regarding the relevance of speeches in course of debate in a Parliament. It was observed that opinion in such speeches at best can be indicative of the subjective opinion of the speaker. The Court also referred to other cases decided by the Hon’ble Supreme Court where in it was held that ‘speeches made on the floor of the Parliament are not admissible as extrinsic aids to the interpretation of statutory provisions’ because a statute is the expression of the collective intention of the Legislature as a whole and any statement made by an individual, albeit a Minister, of the intention and object of the Act, cannot be used to cut down the generality of the words used in the statute. On this basis, the Court found that the submissions made by the Trust as least relevant.

The Court also considered the submission made in the PIL that ‘health care’ was initially included in the definition of the term “service” in the Bill but the same was deleted after extensive debates. The Court in this regard opined that the parliamentarians might have thought of not including `health care’ as the same has already been understood and interpreted by the Supreme Court in Indian Medical Association and such express inclusion would have amounted to a ‘mere surplusage’. The Court further observed that “If at all the Parliament while repealing and replacing the 1986 Act with the 2019 Act had intended to give a meaning to the term “service” different from the one given by the Supreme Court, such intention ought to have been reflected in clear words by a specific exclusion of ‘health care’ from the purview of the 2019 Act.”

With this background and reasoning, the Court dismissed the PIL as being ‘thoroughly misconceived’ and imposed a cost of Rs.50,000/- to be paid to the Maharashtra State Legal Services Authority.