The Sound of Music

(T.G. John, Advocate, Trichur)

Kumar Hemendra Choudhary was the eldest son and heirapparent to the big estate of Maharaja Acharya Choudhary of DIGAGHAT of the former East Bengal which later became Eastern Pakistan after the Partition in 1947 and has now become Bangladesh. Hemendra was a tall handsome young man of 25 studying in the Second Year B.A. Pass class of Presidency College, Calcutta. From his age it could be well deduced that he was not quite serious at his studies. Every year he avoided appearing at the examination. An ordinary student would have been turned out of the college for such omissions, but the British Principal of the college allowed him to continue in the same class year after year as he was the son of a Maharaja, He was also the captain of the Cricket Team of the college. He lived in Calcutta in fine style quite befitting a prince. He resided in a fine two-storeyed -bungalow with lawn, flower, fruit and kitchen gardens and a bachelor as he was, he was living alone in the house with a full retinue of servants, cook, chowkidar, gate keeper and a driver for his Minerva saloon car.

It is sometimes said that there is scarcely any human being of culture and refinement who is not profoundly influenced by a sweet female voice or enchanted by the melody emanating from a soprano or contralto. Hemendra was no exception.

Hemendra had a telephone at his residence. It was in the early days of the telephone system, when the 'Exchange' had to be called by the subscriber for getting connection. One fine morning, Hemendra lifted the receiver and asked for Presidency College-Number 423. From the other end came the reply in a sweet voice, "Yes, Sir, sorry, the number you call for is engaged, will you please call after three minutes?" Hemendra hung the receiver on the hook. He was so pleasantly surprised by the enchanting melody of the telephone girl that he wanted to call her again immediately. He called again after three minutes, this time his heart was pounding heavily. "Are you the Miss who asked me to wait for three minutes for getting 'College 423"? Outcome the reply from the same soprano, "Yes, Sir, but unfortunately, the number is still engaged. I am afraid you will have to wait for some more time".

"That does not matter. But may I know your name". 'Why should you know it', cooed the soprano. 'But if you are very particular, my name is Molina Sarkar'.

Next morning and thereafter for several mornings in succession Hemendra was at the telephone talking to Molina. He came to know all about her that her native place was Dacca, she came to Calcutta to find a job, that she was twenty-one years old and she got the present job of a telephone operator some two years ago. And later he was informed that she was a good singer and was supplementing her income by working as a background singer in a local theatre and her great ambition was to become a Radio Artiste. A young man and woman having thus become friendly over the telephone, things began to progress rapidly. Hemendra's car would often be seen in the evening before the Working girls Hostel, where Molina was living, waiting for Molina to be taken out. And always it ended in dining out in First class restaurants and seeing films.

Molina Sarkar was a dark statuesque girl with billowing heir, chiselled nose and lips and a chubby face. She was in fact a rare specimen of dusky beauty and known in her circle of friends as, 'Kasti Devi' (granite goddess) and 'Abu Rani' (ebony beauty) and 'Krishna Bhamini' (black enchantress). Inspite of her dusky complexion, she had an extra-ordinary personality and her silvery voice even in her ordinary talk or rhythmic laughter would seem to the hearers like a sweet melody flowing from afar.

For six months Hemendra and Molina flitted like love-doves with a song in their hearts and star-dust in their eyes. Within that period Hemendra through his influence with All India Radio Officials procured for her the job of a full-fledged Radio Artiste. She was acclaimed as highly talented in Carnatic music. The greatest day came when Hemendra presented her a jewelled set, all set with diamonds and rubies and promised to marry her within three more months' time when his examinations would be over. Molina was eagerly counting the days, when things began to happen.

At the Radio Station, Molina acquired a girl friend. Her name was Mridula Mukherjee and she was a tall, fair and vivacious girl of about 24 with as fine figure whose work at the station was that of an announcer. Her large eyes with delicately poised eyebrows and lashed over with long curved eye-lashes were capable of stunning any young man. And gradually Hemendra began to switch over his time and attention from Molina to Mridula. This was resented vehemently by Molina who began to treat Hemendra contemptuously and the volcano burst into violent eruption when Molina declined with disdain all attempts of Hemendra to pacify her and meet her again. Considering his status, wealth and appearance, this scornful treatment by a woman was a new experience to him.

One January evening when it was bitterly cold outside, and a dense fog had enveloped the atmosphere, Hemendra Choudhary's car appeared at the Emergency Ward of the Medical College Hospital. Inside the car Hemendra was found in an unconscious condition, occasionally showing symptoms of severe pain in his left upper arm and great breathing difficulty. Strychnine was injected to improve his respiration but it proved to be of no avail. Complete respiratory paralysis occurred at 2.A.M. and in another ten minutes Hemendra was dead. The mysterious circumstances under which Hemendra died necessitated a post-mortem examination which revealed that his death was due to respiratory paralysis on account of poisoning of the circulatory system by some virulent poison injected into the blood stream. On his left upper arm, there was a puncture like that of a needle with a tiny laceration on one side.

The investigation was taken up by the CID of Police. Molina was interrogated and a search of her room resulted in the finding of an unfinished woollen cardigan and a nickel plated steel needle about seven inches long.

Molina Sarkar gave a statement before the police about her relation with Hemendra and their marriage settlement and Mridula's entering his life which was resented by her. And how later one day Hemendra came to her room in the hostel breaking all hostel rules, she was so disgusted with him that she even threatened to call the police. Molina was sitting in her bedroom and knitting a cardigan when Hemendra quietly opened the door and closed it again behind him. Hemendra then rushed towards her and taking her in his arms threw her down in the bed in an attempt to violate her. Not able to resist him, she gave a thrust with the knitting needle that she had in her hand on his left upper arm. He jumped up in agony and ran out of the room and that she knew nothing more.

The knitting needle was subjected to examination by chemical microscopy when some black sticky substance was found on the needle point. It was found that it was poison akin to 'Curare' (arrow poison) obtained from the Andaman Island and that it was partly soluble in dilute hydrochloric acid and completely soluble in alcohol.

Molina Sarkar was arrested by the police on suspicion. It was pointed out that the needle was very old and rusty with which she could never have knitted the cardigan and that the needle had poison on it which she would have procured from Calcutta with a murderous intention. But Molina did not detract an inch from her previous statement. She was sent up for trial for murdering Hemendra Chowdhary with a poisoned crochet needle and was committed to the Sessions which gave her the benefit of the doubt and acquitted her.

The mystery of the case, however, cleared itself when after the acquittal Molina Sarkar, the Silvery Soprano, committed suicide leaving the following note:

"I cannot stand this life any more without my Hemendra, whom I have cruelly killed. I deserve no compassion".

Eve and the Serpent

(T.G. John, Advocate, Trichur)

Dr. Naema Sultana Begum, M.B.B.S. was a very brilliant student of the King George Medical College, Lucknow. She had secured the coveted Express Victoria Readership (Research Scholarship) of the College for three years and was doing research work in forensic medicines and toxicology under the guidance of Dr. Gautam, Professor of the same College. She was extremely beautiful and vivacious and had even figured as a Beauty Queen in many of the beauty contests in the hill stations of Northern India, like Mussorie, Nainital and Simla, combining in herself western beauty and oriental charm. She hailed from a highly cultured and aristocratic Muslim family of Lucknow. Her father Mirza Afzal Beg was an I.C.S. Official who met with a motor accident and was killed on the spot. Since then Naema, who was about 23, her widowed mother Salima, who was about 40 years old and her brother Mirzafar who was studying for B.A. in the local college had been living in their ancestral house, Mir Manzil, in Lucknow.

Dr. Mohanlal Gautam, M.D., F.R.C.S. (Edinburgh), Naema's guide in research, was one of the brilliant men on the staff of King George's Medical College, Lucknow. Though his special subject was Pathology, he was supreme in other fields also. His reputation as a general practitioner was great and he had a large number of rich patients who paid him enormous fees. He used to attend to his students and their family members and also genuinely poor people at their homes without any fees at all. He was a tall and extremely handsome man with glistering eyes and a sharp aquiline nose and was about 38 years old. All his students liked him. His family consisted of his wife and two small children. A loving husband, he lived with his family in a fine bungalow attached to the college.

And then things began to happen! It is strange that young attractive and talented girls are drawn towards elderly men despite the handicap of their being already married and having children. Gradually Naema got enamoured of the tall and handsome Dr. Gautam nearly twice her age and father of two children with a pretty and devoted wife. She was being irrevocably drawn towards the cold lustre and invisible magnetism of his brilliant and superb manhood. She also wondered why she who could stun an young man with a mere twinkle of her eye, could not move this stolid Adonis of a man who was utterly insensate to her charms.

She was determined for her catch. She took every opportunity to talk to him about her studies, the social conditions of the city and finally a probe into his family life. But Dr. Gautam never exceeded his limits as a guide and Professor in his talks to her. And then one day on her request he took Naema to his residence and introduced her to his wife and children. Naema begged Dr. Gautam to make a return visit to her residence which Dr. Gautam did out of sheer courtesy. He was introduced to Naema's mother and thereafter Dr. Gautam made frequent visits to Naema's residence. Meanwhile, Naema's nerves were getting frittered and she was almost on the brink of insanity consumed by unrequited love. And one day casting aside all decency and decorum, Naema asked her mother whether she would mind if Naema married Dr. Gautam. Her mother replied that she would have her blessings but added that it was impossible and unthinkable as he was a family man and a Brahmin and treated her only as a grown up daughter. "That is my business mother, you may leave it to me", she replied.

And then on the next visit of Dr. Gautam, when Naema's mother was absent in the house, things got hot. Dr. Gautam was on the point of going away when he found her mother was not present. And then Naema went into a sudden outburst of passion.' Don't you think that I am far more beautiful than your wife - would you marry me? Naema burst into tears and was sobbing heavily.

Dr. Gautam was so stunned by this sudden and unexpected outburst of passion. However, he slowly gathered his wits and mumbled that it was utterly unthinkable, he being a married man with a devoted wife and a Brahmin too and his feelings towards her could be no more than that of a father or brother.

Naema was frantic and persistent and then put her second alternative. 'You are a rich man, Dr. Gautam, you can hire out another bungalow and keep me there; hundreds of big people are doing it nowadays'. Upon this Dr. Gautam flared up like gunpowder and retorted, 'I thought that with all your faults you were a good girl. But now I find that you area strumpet'!

Strumpet! The words had an electrifying effect on Naema. She flushed crimson and with a snarling and disdainful gesture she got up and disappeared. Dr. Gautam stepped out of Mir Manzil into broad daylight and thereon into his car.

Next day and for many other days Naema was absent in the college for her research work. One evening Dr. Gautam had a special messenger from Naema, to make a visit to her and diagnose her illness and treat her. Dr. Gautam went to Naema's house after finishing his work in the college and that night Dr. Gautam did not return to his residence.

Next morning there was a banner headlines in Lucknow newspapers "Dr. Gautam shot dead by a girl student! Assailant arrested!' The student was none other than Naema, his research student. The post-mortem examination of the dead body revealed that Dr. Gautam had been killed by a shot fired at point blank range from a 12 bore shot-gun using buckshot (LG) ammunition. Five of the six LG catridges were recovered from inside the dead body. The sixth was recovered from near the place where the dead body was lying. Death must have been practically instantaneous.

In the police station Naema made a confession — that she loved Dr. Gautam with all her heart; but atleast on one occasion he scorned her as a strumpet which overwhelmed her feelings so that she wanted to end her life. But before that she wanted to finish Dr. Gautam who rejected her in such a contemptuous way. Later on when she was produced before the Magistrate, she resiled 'on advice'. She made a statement that she was innocent and that she did not know to use a fire-arm and the gun in her house was used by her father before his death. And also that the dead body was planted in her house by some of the enemies of Dr. Gautam who had done the crime. That Dr. Gautam wanted to marry her and she was not willing for such an alliance!

In the Sessions Court the prosecution proved that contrary to the allegations of Naema, She was an expert in handling firearms. In fact, the licence for the Westley Richards Shot gun had been transferred to her by her father before his death and that prior to the incident she had bought 20 Eley-Kynoch Buck-Shot catridges for the gun from the local ammunition shop. But why did she kill him? The defence made a suggestion that perhaps Naema was showing her gun to Dr. Gautam when an accidental discharge might have killed him. This hypothesis was negatived by the fact that the gun had barrels 33 inches long and it was quite impossible for Dr. Gautam to receive the discharge from the barrel on his chest due to an accidental tripping of the trigger. Two of the neighbours of Naema testified that at about 11 p.m. on that fateful night they had heard the report of a gun shot from her house and the piercing cry of a man in agony. One of them had informed the police by telephone.

Naema was convicted by the Sessions Judge for the murder of Dr. Gautam but instead of awarding the capital sentence, sentenced her to life imprisonment. The High Court on Appeal confirmed the convictions but reduced it to 10 years as in its opinion, the motive for the murder could not be clearly proved by the prosecution.

The Family Courts Act, 1984 - A Critical Appreciation

(By R. Lakshmi Narayan, Advocate, Ernakulam)

Family is the basic unit of the Society. Formation of the State and its evolution can be traced out from this small unit called Family. Man is a social animal. Being a social animal, he respects society, bound by the relationships created by the society and governed by rules framed by the society.

The first association created by man may be his family. This association is necessitated by the various factors like inter-dependence and personal security. So the family, as a basic unit of the society, has to be protected and preserved. For this, the relationships between the members of the family has to be regularised in order to keep a balance. For that purpose, the instrument of law is the only solution.

It is quite natural that the relation between members of family may strain due to ever so many reasons. So the law, as a protector of rights, and as an instrument to enforce duties arising out of matrimonial bond, gain significance. By applying law, the right and duties are enforced and then imbalance in family relations are settled.

For the settlement of dispute between the members of a family, there should be a procedure. The procedure must be effective and speedy one. Otherwise the imbalance in the family unit may bring trouble to the Society as a whole. So administration of justice in this field needs a special care. Taking into consideration of this special character of family and its significance in the society, the Government has come forward to enact a special Act which constitutes Family Courts in order to render speedy justice.

The word family means household or parent and their children who live in one house. The Family Courts Act of 1984 has not defined the word 'Family'. But going' through the provisions contained in that Act one can gather the meaning. Family in the context mean those persons who are bound by the matrimonial bond. Even though the Act has been passed as early in 1984, the implementation has started this year. So it will not be out of context to analyse some of the important provisions in the Act and to evaluate the practical side of its implementation.

Before the implementation of this Act, Civil Courts were exercising the jurisdiction over this subject. Now the Civil Courts are no more having the jurisdiction to entertain any case which falls within the four corners of S.7 of the Family Courts Act. Power of the Magistrates Court, under S.125 Cr. P.C. also has been abrogated and transferred to the Family Court.

S.7 of the Act deals with the jurisdiction of the Family Courts. It reads as follows:

"S.7-JURISDICTION-(1) Subject to the other provisions of this Act, a Family Court shall --

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.

Explanation:-The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:--

(a) a suit or proceeding between the parties to a marriage for a decree for nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;

(d) a suit or proceeding for an order of injunction in circumstances arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise--

(a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973, (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by any other enactment.

A mere reading of this section is enough to understand that every possible dispute between the parties to a marriage and those things which arise out of said marriage will come under the purview of Family Court. A dispute between parties to the marriage as regards their property will come under the purview of this Act even if such dispute is not arising out of matrimonial bond. So it can be seen that the Parliament has entrusted a difficult task on the shoulders of the Family Court. To discharge this, necessary powers also are granted. Now the only thing which remains to be seen is its working. The question at this juncture is whether it will be a success or not in fulfilling the object of the Act.

Under S.9 of the Act, the court is duty bound to make efforts for settlement of dispute. It should assist and persuade the parties in arriving at a settlement in respect of the subject matter of the suit. S.9(2) also empowers the Court to adjourn the case if there is a reasonable possibility of a settlement between the parties. The section maybe misused by the parties to drag the proceedings. S.11 directs the court to conduct the proceedings in camera if the court so desires or if either party so desires. This provision may sometime encourage the parties to initiate unnecessary proceedings without the fear of public opinion.

S.13 says that no party to the-suit before a Family Court shall be entitled, as of right, to be represented by a legal practitioner. This may hamper speedy disposal because parties are not familiar with the provisions of law or well settled position of law. They may not be in a position to convince the court, their points. If the parties are compelled to plead their case personally there is every chance of aggrevating the disputes, because unnecessary allegation may be levelled against each other by the influx of emotions. Appointment of Advocates as amicus curiae is no substitute for engagement of lawyers by the parties. The Family Courts (Kerala) Rules of 1989 permits the parties to have legal advice with the permission of the court. Even then the right to have legal advice depends solely at the discretion of the court.

As per the Act there shall be Counselling Centre attached to each Family Court. Principal Counsellor is its head. The court, after the appearance of the party, should direct them to the Counsellor, for the purpose of counselling. The Counsellor has enormous duties. He has to help the parties to arrive at a reconciliation. He is entitled to pay home visits to the homes of any of the parties. He can interview relatives, friends and acquaintances of parties. He can seek information from the employer of any of the parties. He can refer the parties to an expert in any other area such as medicine or psychiatry. After completing the above mentioned process he should submit a report to" the court. If the matter is settled the court will pass a decree according to the terms of settlement arrived at before the Counsellor. The Counsellor has a right to supervise custody of children and supervise, guide or assist reconciled couples. One is afraid whether such procedure will be helpful for a speedy disposal of the cases.

After getting the report from the Counsellor, the Chief Ministerial Officer shall call a meeting of the parties to fix a date of hearing of the petition. The Chief Ministerial Officer after consultation should fix a date and time of hearing before the court. The court after this takes evidence and decides the case. So it is a lengthy procedure which consumes much time. Even though the Act is meant to avoid technicality of procedure 5 as in the ordinary civil court, the object may not be attained as long as the lengthy proceedings before the Counsellor, Chief Ministerial Officer and" the court, are contemplated. Thus unavoidable delay in this procedure may aggravate the strains between the parties and stand in the way of just solution of problems. The parties in these type of cases are coming to the court only after availing all possible mediation and counselling through the well wishers, friends' and relatives. So they may not be interested to settle their dispute through Counsellors under the Act, who are totally strangers to the, parties and who have no special interest in them. This will only help to delay the adjudication of dispute.

Now only 3 Courts are established under this Act in the whole State of Kerala, i.e.,... in Trivandrurn, Ernakulam and Calicut. So the difficulty faced by the litigants in other Districts in Kerala is apparent. They will be put to difficulties until courts are established in their own Districts under the Act. Until then it will be better if the civil courts are empowered to continue their jurisdiction over these matters covered by the Family Courts Act.

The Preamble of the Act reads as follows:--

"An Act to provide for the establishment of Family Courts with a view to promote conciliation in and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith".

When a special Statute is enacted it should be for removing the defects and difficulties that existed in the general law or procedure. If that aim is not achieved, the special enactment is of no use. So the Act as it now stands is facing a big challenge in the province of practicality. Only time can tell whether it succeeds or not in attaining its goal enshrined in the Preamble of the Act.

Family Courts in Kerala

(By M. Stanley Fernandez, Advocate, Kochi)

Family Courts, set up to deal exclusively with family disputes and to render quick justice to women and children, still remain outside the reach of nearly half the population of the State. The three Family Courts in Kerala were constituted on 6th June 1992, but they cater to only six districts and create new problems of access to justice.

The Family Courts Act, 1984, aims to promote conciliation and settlement of disputes relating to all marriage and family affairs. S.3(1)(a) of the Act provides that a Family Court "for every area in the State comprising a city or town whose population exceeds one million" shall be established. In Kerala with a population of about 30 million, this has had the result that there are only three Family Courts, in Trivandrum, Kochi and Kozhikode. The first cover Trivandrum and Quilon Districts, the second Thrissur and Ernakulam, and the third Kozhikode and Wayanad.

The practical effect of the 1984 Act, is therefore, to restrict access to courts for Family Law matters. This coupled with the implications of restrictions on lawyers acting in such courts, as envisaged under S.13 of the Act, will not necessarily be to the benefit of women and children. One could even sec here a device to discourage people from bringing matrimonial disputes to courts, though it is not clear how this could be harmonised with the approach taken by Varghese Kalliath, J. in the recent case of Yousuff v. Sub Inspector of Police (1992 (2) KLT 866 at 871), where (he learned Judge rightly criticised a mother's recourse to self-help rather than the due process of law, clearly the Slate cannot have it both ways.

A close look at S.3 of the Family Courts Act, 1984 shows however that the State has only provided minimum facilities. So far and may easily (resources permitting we must assume) institute more family courts. In S.3(1)(b) we read that the State Government "may establish family courts for such other area in the State as it may deem necessary". S.3(2) also indicates flexibility in the operation of a system of family courts.

How the courts are going to work remains to be seen but it is already obvious that there is a case for establishing a Family Court in the 14 districts of Kerala. Barely established, the three existing Family Courts already have a heavy workload. For instance, in Kozhikode about 6000 cases were transferred to the Family Court from the 16 other courts that were previously handling them. New cases are daily being added to this file. The two other family courts are also found with similar problems.

The three Family Courts in Kerala, lack the infrastructural facilities be fitting for a court of law. The family court at Kochi had no seal of their own for more than a month and there are no amenities whatsoever in the Kochi court either for the lawyers or their clients. One would hope that these are merely teething problems of a new Institution.

In conclusion, the present establishment of Family Courts in Kerala appears unsatisfactory on several counts. A continuous and close review of progress will be an essential task, but it is inconceivable that in an area as complex and central as Family Law less infrastructural provision is possible. The case for the introduction of more Family Courts in Kerala, and better facilities for, them, is already apparent. It would clearly be in the best interests of Women and Children in the State that action is taken soon.

Advocates and Consumer Protection Act, 1986

(E.K. Ramakrishnan, Advocate, Payyannur)

Will advocacy come under the purview of Consumer Protection Act, 1986?

The subject matter of a complaint before a Consumer Court may be (1) unfair trade practices adopted by a trader, or (ii) defective goods sold by the trader or (iii) deficient service rendered to a consumer or (iv) excess price charged by the trader. (Sec. 2(1)(c) -- Definition of Complaint).

Any person who hires any services for consideration is a consumer under this legislation. And if he feels that the service provided to him is deficient, he can approach the consumer court for redressal of his grievances. Since advocacy is a service, it is high time to think over whether it will come under the purview of CPA 1986.

S.2(1)(o) of the Consumer Protection Act 1986 defines service as "service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 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", i.e. except free services and contract of personal service all other services will come within the ambit of CPA 1986.

Of course, ours is not a free service. Then the next question is, is our service a contract of personal service? If the answer is negative, definitely the services rendered by an advocate to his client will come within the scope of service as defined in S.2(1)(o) of CPA 1986.

A wide discussion is required on this point especially in the light of the decision rendered by the National Commission on M/s. Cosmopolitan Hospitals and another v. Vasantha P. Nair (1992 (1) CPJ page 302). It was a case between hospital authorities, on the one side and the deceased patient's relatives on the other side. The hospital authority and the doctor disputed the very maintainability of the petition on various grounds. The important among them are that, their service to the patient is a contract of personal service which is an exempted category of service under the CPA 1986 and because their profession is covered by the Indian Medical Council Act 1956, which provides a complete code of conduct and the said Act has not been superseded by the CPA 1986, the provisions of the latter Act cannot have any application to members of the medical profession.

But after an elaborate discussion on the point and various case laws, the National Commission dissented with the contentions of the doctors and held that as a professional service, it is not a contract of personal service and so it will come under the service defined in the CPA 1986. On the issue of Medical Council Act 1956, the National Commission held that in that Act there is no provision for the protection of the interest of persons who may have suffered on account of any negligence or deficiency in the service rendered by members of medical profession and so the provision of the CPA 1986 are applicable to the disputes concerning deficiency in the service rendered by hospital and the members of the medical profession also.

The National Commission was considering the appeal filed by the Hospital authorities and ultimately fully agreed with the decision taken by the State Commission (Kerala). While discussing the various aspects of the above mentioned case, the State Commission held that like the service of a lawyer, the service rendered by the hospital and its doctors was basically professional service and hence it will be incorrect, infelicitous and even crude' to call the sophisticated high class professional service as 'Personal service'. Agreeing with the observations of the State Commission, the National Commission opined that "we agree with the terse observations of the State Commission that while a medical officer's service may loosely be called personal, it will be incorrect, infelicitous and crude to describe it as personal service. A contract of personal service involves a master and servant relationship which is wholly different from a medical doctor-patient relationship and in our opinion it will be totally wrong to call the service rendered by a medical doctor to his patients as 'personal service' coming within the exempted category mentioned in S.2(1)(o)".

In short, like the services of a lawyer, the services rendered by the Hospital and its doctors are coming under the definition of service described in S.2(1)(o) of CPA.

It is very difficult to agree with this proposition. While engaging an advocate to conduct a case, the client is making a contract with the concerned advocate. As a fiduciary relationship based on trust and confidence, it is a personal service. Though it is a professional service, unlike doctors the relationship between the lawyer and client is fully personal. Moreover, if one advocate wins the case, his opponent is bound to lose. That being the situation, if the defeated client approaches the consumer court levelling wild allegation like deficiency, laches, negligence etc. against his advocate's service, then there will be no rescue for advocates, except to conduct their own cases before the consumer courts.

But at the same time, it is very relevant to note that as in the case of the Indian Medical Council Act, the Advocates Act, 1961 also does not contain any provision for the protection of the interests of persons who may have suffered on account of any negligence or deficiency in the service rendered by advocates. So this lacuna is to be filled up by appropriate amendments. Otherwise the losses suffered by the "defeated" clients will remain unconsidered.