CHAPTER NO. 02 CONSUMER PROTECTION - LEGAL LANGUAGE II

CHAPTER NO. 02

CONSUMER PROTECTION

AIMS AND OBJECTIVES OF CONSUMER PROTECTION ACT –

         

            In the olden days the application of Latin maxim let the buyers be aware than severally restricted the rights of the consumer and had put him the mercy of the seller. However in the course of time several exceptions to the maxim were recognized which had the effect of curtailing the impact of this rule on the helpless buyers at the same time the need to protect the consumer was widely felt as mere and mere unscrupulous traders and service providers, armed with market knowledge and manipulation skills, exploited the gullible consumers.

In India the problem is that the consumers is not only exploited by private enterprises but even by the government enterprises it is well known that Indian consumers often preference to suffering sickness rather than knock the door of justice. The Indian consumer, tolerant as he is by nature, has always been hasistant to move the courts of law for redressal office problem given conditions in which civil court function he is not desire more time in court room than in his office or place of business. In India at least defective goods, deficient service and misleading advertisement have become a part of life.  

The need was thus arise to the protection of consumers and recognition of rights. The passing of consumers protection act file this lacuna in 1986 and made it possible for the country to reach the democratic good of “Justice within reach”

The main object and purpose of this legislation is to rendour simple inexpensive and speedy justice through three tires system of cousy judicial machinery, District, State, and National levels.

            Objects and purpose of consumer protection act as stated in problem is :

1.    To provide better protection of interest of consumer

2.    To make provision for establishment of consumer council and activities for the settlement of consumer dispute.

3.    The matter connected there with.

UN has recommended that all countries of the world should develop strengthen policy keeping in mind the guidelines set out in this respect the government enjoying the guidelines for all country for ensure.

1.    Physical safety of the consumers

2.    Protection of interest of consumers

3.    Consumer access to information needed to make informed choice

4.    Measure enabling consumers to obtain readers

5.    Distribution of essential goods and services.

6.    Satisfactory production and performance standards

7.    Adequate business practices and informative marketing

8.    International consumers co-operation in the field of consumers protection

To conclude it can be said that we have come the long way from the

Doctrine of caveat emptor. Thanks to the celable movement of consumerism where the consumer is said to be put on pedestal, the maxim then seems to be more appropriate today is caveat venditor (let the seller be aware).

DEFINATION OF IMPORTANT TERMS USE IN THE ACTS –

1.   CONSUMERS:

The definition of consumer has been framed in a very comprehensive manner and covers every person who pays money for goods and services and deserve to get what he pays section – 2 (D) of the act recognizes two categories of consumer i.e

                      I.        Consumers of goods

                    II.        Consumers of services.

Case law:

MTNL Vs Vinod Kalkare.

            A person who was actually using the telephone with the subscriber permission was held to be consumer. He could therefore claim compensation from the telephone company for the deficiency in service all though he was himself not a subscriber of that telephone company.

2.   CONSUMER DISPUTE:

Section 2(E) defines consumers dispute as a dispute where the person

Against whom a complaint has been made, denies and dispute the allegation contain in the complaint.

3.   COMPLAINT:

The word complaint means any allegation made in writing by the

Complainant with a view to obtaining any relief provided by or under the act:

a.    An unfair trade practices or restricted trade practices has been adopted by any trades or service provider.

b.    The goods bought by him or agreed to be bought by him suffer from one or more defects.

c.    The services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect.

d.    A trader or service provider has charged for the goods or service, a price in excess of the price.

                                      I.        Fixed by or under any law.

                                    II.        Displayed on the goods or any package containing the goods.

                                   III.        Displayed on the price list exhibited by him under any law or

                                  IV.        Agreed to between the parties

e.    Goods which when used will be hazardous to life and safety, are offered for sale to the public in contravention of any safety standards prescribed for such goods by the law as if the traders could have known that the goods so offered are unsafe.

f.      Service which when used is hazardous or lightly to be hazardous to life and public safety are being offered by the service provider when such person could have known to be injuries to life and safety. Setion2(c)

4.   COMPLAINENT:

Complainant means any of the following five classes of persons who make complaints:

                                      I.        A consumers

                                    II.        Any Voluntary Consumer Association resistor under company’s act 1956 or under any other law.

                                   III.        The central government or any state court.

                                  IV.        One or more consumer where there are numerous consumers having the same interest.

                                   V.        In case of death a consumer the legal hire and representative section 2(b).

DEFECT SECTION 2(F) CLAUSE:

           

            A defect means any fault, imperfection, or short coming in the quality, quantity, potency, purity, or standard which is required to be maintained under law enforce or under any contract (express or imply) or as is claimed by the trader in any manner what so ever in relation to any goods.

            Following have been held to be defective goods under the act:

                       I.        An air conditioner with an unusually load noise.

                      II.        A T V set which broke down within a week after it is purchased and had then to be repaired 11 times.

                    III.        Adulterate rape seed oil, after the consumption where of an advocate and his wife suffered from numbness of the limbs.

                   IV.        Printing machinery with manufacturing defects.

                     V.        A sofa set which broke down in one and half month.

                   VI.        A pressure cooker which burst in normal use, causing injury to the consumer wife.

DEFECIENCY SECTION 2(G) –

            Deficiency means any fault, imperfection or inadequacy in the quality, nature and manner of performance which is require to be maintaining under any in force or has been undertaken to be performed by a person in presence of a contract or otherwise in relation to any services.

Skypack Couriers PVT LTD.Vs Anupama Bagla

            The national commission has held that non delivery of video cassets entrusted for carriage to a courier is deficiency in service entitled the consumers to compensation.

            The following have been to amount deficiency in service:

                      I.        Failure in the part of a bank to credit and amount deposited in the account of consumer.

                    II.        Payment of cheque by a bank dispite having received instruction from the account holder to stop payment of that cheque.

                   III.        Supply of contaminated blood by a blood bank.

                  IV.        Supply of stale food by an airline to a passenger.

                   V.        Illegal disconnection of a subscriber telephone.

                  VI.        Illegal disconnection of the electric supply of a subscriber.

                 VII.        Allotment of the same number of role number to three different students at a University Examination.

SERVICE SECTION 2(O) –

           

            The term service is defined by section 2(O) of the act to mean service of any description which is made available to potential user.

            The term includes but is not limited to the following services namely provisions of facilities in connection with:

a)    Banking

b)    Finance

c)    Insurance

d)    Transport

e)    Processing

f)     Supply of electricity or other energy.

g)    Boarding or lodging

h)    Housing construction

i)     Entertainment

j)     Amusement

k)    Purveying news or other information

However, the terms do not include:

a)    The rendering of any service free of charge.

b)    Rendering of any service under a contract of personal service.

CASE LAWS:

     Indian medical association Vs V. P. Shanta.

                  After the decision of Supreme Court, the above case it has become well established that a doctor does not render service to a patient, when he treats him for a fee. It was strongly intended on behalf of the medical profession that doctor – patient is a contract of personal service. Now, as contract of personal service are specifically excluded by the definition, a doctor’s service should fall outside the ambit of the act. Rejecting this argument, the Supreme Court held that such a contract is the contract for personal service and not contract of service the only exception available to doctors and hospitals would be where a patient is treated free of charge. Hence, a government or municipal hospital where all the wards are free wards lie out the ambit of the act. The fact that a patient in such a hospital pays a nominal amount for registration make no difference as this amount covers administrative expenses and not charges for providing the medical treatment.

      As regards, private hospitals where all the patients are charged for treatment, service are rendered by the hospital and a patient is a consumer. Hence such a hospital fall within the ambit of the act.

      As regards, hospital which charge patients but which have some beds or wards for poor patients who are treated free of charge, the Supreme Court held that such hospitals including the free wards are covered by the act.

      Supreme Court also rejected an argument that if a patient pay for a treatment but is later reimbursed under a medical insurance policy. Such treatment to be regarded as being without a consideration and falls within the scope of the act.

RES IPSA LOQUITOR (THINGS SPEAKS FOR ITSELF):

      In case where maxim res ipsa loquitor (things speaks for itself) applies as when a sponge or a forceps is lift behind in the abdomen during the surgery the surger would be liable for negligence and compensation would be awarded to the patient or to his / her hires.

Solicitors and lawyers

Daivathan V/s M. Bhalachandra.

APPROPRIATE LABORATTORY SEC 2(a):

      When a consumer complaint is filed under the act, alleging or defecting good, it may become necessary to send such goods to a laboratory for a test report. As both the complainant and the opposite party may try to obtain favorable test report, it is provided that such goods can be tested only by an appropriate laboratory.

Under sec 2(a) of the act and appropriate laboratory:

a.    A laboratory or organization recognized by the central government or state government subject to the guideline prescribed by the central government.

b.    Any such laboratory or organization established by or under any law which is maintained or financed or aided by the central government or a state government for caring out analysis or test of any goods, with a view to determine whether such goods suffer from any defects.

A list of appropriate laboratory is available with the ministry of

Food and civil supplies, the list gives the name of all such laboratories as are established or recognized by the government.

                                      I.        Indian agriculture research institute, New Delhi.

                                    II.        Central rice research institute, Cuttack.

                                   III.        National aeronautical laboratory, Banglore.

                                  IV.        Central potato research institute, Shimla.

                                   V.        Electronics regional test laboratory, Mumbai.

CONSUMER PROTECTION COUNCIL AND RIGHTS OF CONSUMERS:

           

            Under section 4 of the act a council known as central consumer protection council (Central Council) is to be establish by the central government by a notification published in the official gazette.

            The main objects of central council lead down in section 6 of the act are to promote and protect the rights of consumers.

                      I.        Right to protected against the marketing of goods and service which are hazardous to life and property (Right to protected).

                    II.        Right to be informed about the quality, quantity, potency, purity, standard and price of goods or services or as the case may be so as to protect the consumer against UTP.

                   III.        Right to be assured, wherever possible access to a variety of goods and services at competitive prices.

                  IV.        Right to be heard, and to assured that consumer interest will receive due consideration at appropriate forum.

                   V.        Right to seek redressal against UTP or restrictive trade practice or unscrupulous exploitation of consumers.

                  VI.        Right to consumer education.

CONSUMER COURT OR CONSUMER DISPUTES REDRESSAL AGENCY OR THREE TIER SYSTEM:

DISTRICT FORUM:

            The act provides for three tier patter of redressal agencies in respect of consumers dispute. This redressal agencies are like consumer courts established to give relief to the consumer. In every district, redressal agency called consumer disputes redressal forum (District forum) has been established by state government. At the state level a consumer dispute redressal commission known as state commission is established and at the national level the act provides for establishment of national consumers dispute redressal commission. National commission by the central government and this commission are based in New Delhi. The district forum which has only original jurisdiction is composed of the following:

                      I.        A person who has been or is qualified to be a district judge – who is the president of the district forum.

                    II.        To other members one of whom one must be a woman, who had the following qualification:

a.    He / She are not less than 35 years of age.

b.    He or She possesses a bachelor degree from a recognized university.

                      I.        He or She is a person of ability integrity and standing with adequate knowledge and experience of at least 10 years of dealing a problem relating to economics, law, commerce, accountancy, industry, public affair or administration.

STATE COMMISION:

           

            State commission as its president a person who is or has been or is qualified to be a judge of high court. The other members should not be less than 2 and not more than prescribed number one of whom one must be a woman. There qualification are same as those of the member of the district forum namely clause A, B, AND C above. It is further provided that not more than 50% of the members of the state commission should be person having a judicial background as let down in the act.

NATIONAL COMMISSION:

            As far as national commission is concerned its president must be a person who is or has been or is qualified to be a judge of the Supreme Court. The other members should not be less than 4 and not more than prescribed number. One of whom must be a woman. Their qualification are same as those of the members of district forums namely clause A, B, AND C above. It is further provided that not more than 50% of the members of national commission should be person having a judicial background as let down in the act.

            The pecuniary (Financial) jurisdiction of the courts is as following:

                      i.        District forum – all claims under Rs. 20 lakhs.

                    ii.        State commission – all claims between Rs 20 lakhs to 1 crore.

                   iii.        National commission – all claims above 1 crore.

As regards appeals, an appeal against an order passed by a district forum

Lies to a state commission and order passed by a state commission and applicable before national commission appeal against order passed by national commission all to be filed before the Supreme Court of India. All appeals are to be filed within a period of 30 days from the date of the order section 27(A).

            Complaints can be filled in the consumer’s court within the local limit of whose jurisdiction:

                      i.        The opposite party or each of the opposite parties actually and voluntarily resides or carries on business or has been a branch office or personally works for gain at the time of institution of the complaint.

                    ii.        Any of the opposite parties (where there are more than one) actually and voluntarily resides or carries on business or has a branch office or personally works for gain at the time of institution of the complaint, provided that in such cases the permission of the court has been obtained or the opposite party that does not reside etc. equisies in such institute.

                   iii.        Cause of action arises whole or in part.

PROCEDURE TO BE FOLLOWED:

            The procedure to follow by the court can be summarized as under:

                      i.        A copy of complaint is sent to the opposite party within 21 days of its admission and the opposite party is called upon to fill his version within a period of 30 days (which can be extended for further period of 15 days)

                    ii.        If the complaint prefers to an alleged defecting goods and such a defect requires a proper analysis or test, a sample therapy is sealed by the district forum and sent to a appropriate laboratory for a report to be filled by the laboratory within the period of 45 days or such extended period as may be allowed by the court.

                   iii.        After healing the parties and going through out the evidence of both the side (including the report of the laboratory if any). The court may pass any order which is authorized to pass under section 14 of the act.

SEC 14 OF THE ACT:

a.    To remove the defects in the goods this has been pointed out by an appropriate laboratory.

b.    To replace the goods with new goods of similar description ensuring that such goods are free from any defects.

c.    To refund the price or charges paid by the complainant to him.

d.    To pay compensation to the consumer for the loss or injury suffered by him due to the negligence of the opposite party.

e.    If loss or injury has been caused to a large number of consumers who are not identifiable conveniently to pay such sum or may be determine by the district forum (not be less than 5% or of the value of the goods or service in question) to be utilized in such a manner as may be prescribed.

f.      To remove the defects in the goods or deficiency in services.

g.    To discontinue the unfair or restrictive trade practice and not to repeat the same in the future.

h.    Not to offer hazardous goods for sale.

i.      To withdraw hazardous goods being offered for sale.

j.      To seize manufacture of hazardous goods and to desists from offering service which is hazardous in nature.

k.    To issue a corrective advertisement to neutralized the effect of misleading the advertisement.

l.      To provide for adequate cause to the parties.

BARS OF LIMITATION:

            The act provides that no complaint can be admitted by the court unless it is filed within a period of 2 years from the date on which cause of action has arisen however a complaint may be admitted even after the expire of the limitation period if sufficient cause is shown. For not filing the complaint within the said time.

FRIVOLAUS COMPLAINT (VEXATIOUS):

            A frivolous complaint is one without any foundation and is made without any reasonable or probable cause solely with a view to annoy, oppressing, waxing, and harassing the respondent.

            If a complaint filed before a consumer court is found to be frivolous it may be dismissed for reason to be recorded in writing. In such cases the complainant is disorder to pay to the opposite party, such case as may be specified in the order not however exceeding Rs. 10,000.