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Khairatabad, Hyderabad, Telangana, 500004

Shubhangi Gandhi | Rajiv Gandhi National University of Law, Punjab | 14th November 2019

INTRODUCTION

Consumer Protection Act, 1986, is an act of parliament which was enacted in 1986 to protect the rights of the consumers in the territory of India. It was commenced on 24 December 1986 as the consumer protection act. It is Act No. 68 of 1986.

The statute is regarded as the MAGNA CARTA in the field of consumer protection for checking unfair trade practices (e.g.; black marketing, hoarding, etc.), defects in goods and deficiencies in services provided to the consumers. It not only checks but also gives consumer the right to seek redressal in case he/she has any grievances and the right to be informed about the quality, quantity, potency, purity, standard and price of goods so as to acquire the goods at the rightful prices and not to be harassed by the manufacturers/sellers.

  • Magna Carta: Latin meaning the great charter of liberties; the term is often used for a document consisting of fundamental rights and privileges.[1]

The said act gives a consumer 6 rights i.e.

RIGHT TO SAFETY– protection from hazardous goods,

RIGHT TO BE INFORMED– information about the products for weighing alternatives and protection from misleading claims in advertising and labeling,

RIGHT TO CHOOSE– availability of a variety of goods at competing prices, qualities and services,

RIGHT TO BE HEARD– in case a consumer is not satisfied with a product that he purchased then thy have a right to file a complaint against it and this complaint cannot go unheard,

RIGHT TO SEEK REDRESSAL– in case of injury/grievances the consumer shall have the right to go to court and seek compensation for this said issue,

RIGHT TO CONSUMER EDUCATION– the consumer has a right to be educated about his/her rights as a responsible consumer and should be given due education about the same.

With such rights, there are a number of consumer responsibilities also attached to it so as to maintain a balance. All rights come with a certain degree of responsibility to ensure that no misuse of such rights takes place. These responsibilities include basic things such as being aware of their rights provided to them under the act and should practice the same in case of need, they should be well aware and cautious about the product that is being purchased, in case the product doesn’t meet the standards of expectation or is faulty then a complaint should be filed and not ignored, cash memos should always be asked while making a purchase, standard marks such as ISI, Hallmark etc. should be looked for on a product to ensure quality and authenticity etc.

In India, consumer protection is an upcoming field. The first society for consumer protection in India was CONSUMER GUIDANCE SOCIETY OF INDIA (CGSI) that was established in 1966 whereas in counties like Japan, the USA, etc. consumer protection had started as early 1914.[2] At present time the main agencies for the attainment of consumer protection in India are district consumer disputes redressal forum (DISTRICT FORUM), state consumer disputes redressal forum (STATE COMMISSION) and national consumer disputes redressal forum (NATIONAL COMMISSION).

HISTORICAL PERSPECTIVE

Till the middle 80s, the trend in India was that of a seller’s market. A seller’s market means that the buyer had to come to the seller for the goods instead of the seller marketing and advertising for his own goods.[3] This means that the consumer had to compete to be able to acquire these goods. Such a trend was completely against the tradition in the west and japan where the situation was totally opposite. For e.g.; in the USA or Europe consumers are not required to book a car or LPG gas for cooking or scooter by making a deposit with the company; rather the manufacturer offers credit to the buyers. This is only to attract the consumers, making their goods easier to buy at easier rates and at least terms and conditions. This is so as there is competition in such a market between sellers and not buyers. In India however, the buyers had to compete to acquire a certain product. The marketing policies; terms and conditions for purchase were stringent. For e.g. if in India a consumer wants to purchase a car; such a consumer is required to make a deposit of the certain sum of money in advance before even getting the product.

With time there occurred a shift in the traditional Indian market. It saw shift from the trend of CAVEAT EMPTOR (which means “let the buyer beware”; i.e. the buyer had to be aware and conscious of his choice of products and no liability would be of the seller.) to the trend of CAVEAT VENDITOR (which the complete opposite of caveat emptor “let the seller beware”; it pinned liability on the seller for the goods they would sell and give an option of redressal to the consumer). Now, the seller had to make efforts to attract the consumers and market their products. This happened through rigorous advertising and competitive advertising techniques. This opened a new avenue and horizon of perspectives to be included in the act because rigorous advertising also included in its false and misleading advertisements to lure in customers; this constituted as an unfair trade practice.

The act was thus revised in 1993, to extend both its coverage and utility to enhance the powers of seeking redressal for the consumer and to extend the scope of the consumers protection act.

The main aims with which the act was established were:

  1. To give the consumers a right to be shielded against the promotion of goods and services that are a risk to life and property.
  2. Give them the right to ensure access to a range of goods and services at viable prices.
  3. Make sure that they are informed about their rights thus the right to consumer education and ensure that consumer protection will be given due consideration at appropriate levels.
  4. To give consumers the right to be informed about the product they choose to purchase, are informed about its contents, risks, how to use/deal with the product and what to do in case of a mishap.
  5. Give them the right to search and seek redressal against unfair trade practices or deceitful exploitation of consumers.

With aims, there always is a certain objective that is to be achieved. The main objective of the consumer protection act was to grant shield and stop the feeling of vulnerability for the consumers.[4] It tried to ensure that there is a considerable shift from the traditional caveat emptor to caveat venditor; i.e. the consumers got a certain sense of security and made the manufacturers/sellers accountable for their products and sale. The act gave consumers a certain voice to stand up against the harassment they were facing due to a lack of consumer rights. The act also objectified to ensuring the sustainability of consumer rights. It has its foundation laid at the very causes of the treatment the consumers would face once the transaction has been completed. A product promised and a product delivered should match and if not by virtue of this the law of consumer protection gives many provisions to replace it without getting involved in messy brawls effectively and efficiently.

ESSENTIALS

What falls in a consumer rights act and what doesn’t is an important question to be dealt with. There are certain essentials that constitute the meaning of the terms like a defect, consumer, seller, etc. being talked from the start of the project. A case comes under the ambit of the consumer protection act only if these certain essentials are matched and the scenarios meet the definitions as under the sections of the act. These essentials/definitions are as under:

  1. CONSUMER: Section 2(d) of the consumer protection act says that a consumer means any person who- (i) buys any good/s for a consideration which has been paid or promised or partly paid or promised, or under any system of deferred payment. (ii) hires or avails any service/s for a consideration which has been paid or promised, or partly paid or promised, or under any system of deferred payment.
  2. DEFECT: It is any fault or imperfection; can also be a shortcoming in the quantity, quality, potency, purity or standards in a GOOD, which was required to be maintained by or under any law for the time being in force or under any contract expressed or implied.
  3. DEFICIENCY: This is parallel to the case of defects In case of services. That means; it is the said fault or imperfection in the quality, quantity, potency, purity or standard in a SERVICE, which was required to be maintained by or under any law for the time being in force or under any contract expressed or implied.
  4. REDRESSAL FORUMS: Consumer dispute redressal forums should be established under clause (a) of section 9 (sec 2(1)(h)); for e.g. district forums, state commission and national commission.
  5. GOODS: The definition and meaning of goods shall fall under and be the same as assigned to them under the sale of goods act, 1930 (sec 2(7)(i)).
  6. SERVICES: section 2 (1) (O) provides that 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, etc. but does not include the rendering of any service free of charge or under a contract of personal service.
  7. MANUFACTURER: It is defined in the sec (1)(j) of the consumer protection act which includes in its ambit any person who makes or manufactures any goods or part thereof or any such person who doesn’t manufactures the good but assembles any part or claims the end product to be manufactured by himself etc. Thus, all such persons can be held liable under the act.
  8. PERSON: Under the section; as per sec 2(1)(m), a person includes- a firm (whether registered or not), Hindu undivided family, cooperative society every other association of persons whether registered under the society’s registration act or not. All such persons are entitled under the act to seek redressal and get their grievances solved.
  9. TRADER: A trader is different from a manufacturer under the act. As per the act a person who sells or distributes any goods for sale and includes the manufacturers thereof within its meaning.
  10. HAZARDOUS GOODS: The term hazardous goods has not been defined in the Act. The dictionary meaning; however, of the term is dangerous or risky. The term is not only used in terms of goods only as a consumer has the right to make a complaint even when he is not informed about the hazardous nature of the good that he/she thinks of purchasing. This though is not the same in case of hazardous services. The rationale behind this is to ensure not only physical but also the mental safety of the prospective consumer.
  11.  RESTRICTIVE TRADE PRACTICE: As per section 2 (1) (n) restrictive trade practice means any trade practice which requires a consumer to buy, hire or avail any goods or services as a precedent for buying, availing of other goods.

SALIENT FEATURES

Salient features or facts about something or qualities of something are the most important things about them; the basic ideas. It basically leads to summing up the topic/article/essay and marking up the central ideas around which the article actually revolves around.

The consumer protection act in it has many salient features i.e. the most noticeable or important features. These features can also be said to be the main idea that was to be achieved through the introduction and implementation of the act.

This act aims at providing an overall or wholistic protection to consumers irrespective of any barriers such as caste, class, low priced or high-priced goods, etc. It provides a safeguard regarding defective goods or products and dissatisfactory services; thus under the purview of this act, there is a provision to ban all such activities which might pose a threat to any said consumer. The said act is applicable to the whole of India except for the state of J&K. It aims at protecting consumers against defective and hazardous goods; deficient and inappropriate services and unfair trade practices like hoarding, black marketing, monopolies, etc. by providing three-tier grievances redressal machinery. Consumer courts in India have been established at a district level, state level and one at a national level; if dissatisfied with a said decision a consumer has a choice and right to go appeal to a higher-level forum and then even to the president as the highest form of appeal. It also gives an easy and inexpensive way of seeking redressal to consumers and covers both the public and private sector i.e. private and public suppliers of goods and services. A consumer need not get involved in any kind of hassle or petty brawls for relief. The act, however, has a fixed time frame for settlement for e.g. aggrieved with the order of district forum, the appeal petition may be filed before state commission within 30 DAYS from the date of receipt of order.

CONSUMER PROTECTION ACT 2019

One of the main features of any law is that it has to dynamic. Something is called dynamic when it keeps on adapting and changing itself with time. Thus, we saw the consumer protection act 1986 getting revised and amended from time to time for bringing it in accordance with changes that were taking place in the economic front because of globalization, digitalization, liberalization and because of the new government in power.[5] Such changes called for some major fundamental changes in the existing 1986 legislation for consumer protection to get the practical implementation of the legislation possible and to fulfill the objective with which it was created. The new act brings in its purview many new facets such as advertising claims, endorsements and product liability, etc. all which play a critical role in altering consumer behavior and retail trends in the 21st century.

OVERVIEW OF THE ACT:

The consumer protection act 2019 has made some new additions and many more amends just to enhance the 86 legislation. For example; the 2019 Act continues to have a three-tier redressal system i.e. at district, state and national level but the pecuniary jurisdiction which means the monetary value of complaints that can be entertained by each of these forums have been increased to reduce burdens on state and national commissions. As higher pecuniary jurisdiction encourages consumers to approach the district forum for complaints up to RS. 1 CRORE. Also, the jurisdiction of these forums has been expanded to allow complaints to be made where the complainant resides or personally works for gain, as opposed to the 86 Act where complaints could only be made where the opposite party resided or personally worked for gain. In such a situation it acted as a deterrent to filing complaints because the complainant had to travel to other parts to pursue their complaints. The admissibility of complaints made to consumer commissions are to be decided within 21 DAYS. This provision was also a part of 1986 Act but as an addition to this the 2019 Act says that if the issue of admissibility of the complaint has not been decided within such time, the complaint shall be deemed to have been admitted. This provision does away with languishing of complaints at a pre-admission stage. This was utterly necessary as this had become a practice especially at the national commission. The 2019 Act also introduces the power of judicial review which is going to allow consumer commission to review their orders thereby reducing the burden faced in form of appeals.[6] The prescribed time for preferring appeals has also become more stringent to ensure timely filing of appeals.

NEW ADDITIONS:

Starting with the most basic, the definition of consumer is changed to include those who make online purchases.[7] Endorsement of goods and services that is mostly done by celebrities, are also being covered within the ambit of the 2019 Act. Moreover, additional onus has been pinned on endorsers apart from manufacturers and services providers to prevent false and misleading advertisements. The definition of “goods” has been amended to include “food” as defined in the food safety and standards act, 2006. This would cover within it the numerous food delivery platform whose trend is particularly on a rising front. Telecom has also been included in the definition of “services” to bring telecom providers within the purview of 2019 act. But, such an addition has not been termed as “telecommunication service” as defined under the telecom regulatory authority of India act; which would have included internet, cellular and data service providers. A significant addition to the 2019 Act is the concept of “product liability”. Under product liability the manufacturers and sellers would be made liable to compensate for any harm caused to the consumer due to defective goods sold or deficient service provided.[8] Another newly added concept is that of “unfair contracts”. This concept is aimed to protect the consumers from unilaterally skewed and unreasonable contracts which lean in favor of manufacturers or service providers. The definition of “unfair trade practices” has been enlarged and enhanced to include electronic advertising which is misleading, refusing to take back or withdraw defective goods or discontinue deficient services, and to refund the consideration within a stipulated time or in its absence in 30 days. It is also included in the purview of offences that if a confidential information is given in confidence and gathered in the course of transaction, gets disclosed. All such inclusions aim at creating more transparency in the marketplace with a view to attain the objective of the act more effectively and efficiently.

CHALLENGES FOR FUTURE:

The new legislation has created a central consumer protection council to regulate matters relating to violation of rights, false and misleading advertisements which are in conflict with the interest of the general public, unfair trade practices and to promote the protection of the rights of the consumers as a class etc.[9] To enforce all such provisions the central authority is empowered to enquire and investigate wing set up and headed by a director-general, analogous to the competition commission of India. While this being a commendable initiative, it is still unclear on how the authority will practically function as existing district collectors have been asked to undertake certain functions of enquiry and investigations. There also an overlap between the investigative wing and search and seizure functions of the district collector which might lead to conflict of interests among the two. The authority to order for reimbursement in case of defective goods or faulty services vets only with the national commission. But the factors on which the national commission shall hear such appeals is unclear. One of the main things unclear at this point of time is that whether the matters currently pending before the respective consumer commissions will continue there or will they be transferred as the jurisdictions have changed on pecuniary basis. Thus, currently a lot of ambiguity might lead to delays and confusions.

But yet the 2019 Act seems to be a positive step towards reformation and development of consumer laws and protection due to dynamic environment and changing sub-economic conditions. It still needs some certainty and definitions of every person’s functions. There are a lot of challenges in that respect but the legislation seems like a step towards the right direction.

CASE STUDY

COMPENSATION TO THE COMPLAINANTS FOR FRIVOLOUS APPEALS

Case: Delhi Development Authority V. D.C. Sharma[10], 18 February 2014.

FACTS: There was an accidental case of double allotment of a plot by the DDA. The state commission refused to accept the defense that the plot had not been provided to the complainant only for his failure to pay the cost. It was found from the records that the plot had been allotted to another person.

DECISION: National commission dismissed the revised petition for lack of infirmity in the state commission’s judgement and ordered the payment of 5 LAKHS for indulging in unfair trade practices and unduly harassing the respondent for more than 18 years on top of 30 LAKHS compensation.

  • This is the development of the consumer protection from a very basic safeguard of rights to also saving malpractices in the name of consumer protection. The aforesaid case shows that there was made a frivolous appeal i.e. a false and foolish appeal. The DDA had sold the plot allotted to the complainants to another party even while the amount was received by them. The question of complainant not complying with demand does not, therefore, arise. There has been default in the performance of the contract by respondent (DDA) and they are therefore liable to pay (back) the amount received…and to provide another flat to him or pay him compensation.

INSURANCE COMPANY TO NOT REJECT CLAIMS ON TECHNICAL GROUNDS      

Case: Om Prakash V. Reliance General Insurance[11], 4 October 2017

FACTS: The appellant got his truck insured with Respondent. This said vehicle was stolen from Chopanki, Bhiwari, Rajasthan on 23 March 2010. Consequently, a FIR was lodged on 2the very next day. Thereafter, the appellant visited the office of the respondent but the office was found to be closed. Then the appellant went to the place of theft and met the driver and then he went to the concerned police official. On 31st of march the appellant lodged the insurance claim and submitted the documents asked by the respondent company. The respondent then appointed an official/investigator who confirmed theft. The appellant made several requests and speedy disposal of the insurance claim and after 5 months of no use sent a legal notice. But the respondent-company repudiated the insurance claim of the appellant citing breach of Condition No. 1, i.e. immediate information about the loss/theft of the vehicle.

DECISION: In Om Prakash v Reliance General Insurance, the Supreme Court     held   that, in the context of a vehicle insurance policy, the mere failure of the vehicle owner to intimate the insurer immediately after the theft of the vehicle should not bar settlement of genuine claims, particularly when the delay in intimation or submission of documents was due to unavoidable circumstances. The Supreme Court further held that an insurer’s decision to reject a claim should be made on valid – not technical – grounds. The Court also noted that the Consumer Protection Act, 1986 is a beneficial legislation that deserves liberal construction. This laudable object should not be forgotten while considering the claims made under the Act.

  • The Apex Court in the case observed that an Insurance company shall reject claim on valid grounds. Rejection of the claims on purely technical grounds in a mechanical manner will result in loss of confidence of policy-holders in the insurance industry. If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. It is also necessary to state here that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the Investigator.

CONCLUSION

To conclude the essay, the consumer protection act all in all tries to save the consumers from getting harassed by manufacturers/traders on a daily basis. It had many objectives, but these were not achieved to their fullest extent. This legislation describes and defines the fundamentals for consumer protection. It has seen many revisions and amends in the past and the most recent one being in 2019 to include in it most aspects and ideas for protecting the consumers to the utmost capability. As the advent of digital era and the social media, the development of the IT sector and e-marketing has ushered a new era of consumers and traders, it has paved way for digital branding as well as new set of consumer expectations.[12] Under the original consumer protection act of 1986, such an ambit of grievances were not covered as they were not foreseen. To include such issues and inculcate new changes on 6 AUGUST 2019, the Indian parliament passed the new consumer protection bill, 2019.

Such a bill covers the E-COMMERCE transactions under it and also enhances pecuniary jurisdiction of the redressal forums. It introduces E-FILING of complaints and mandates the establishment of a CENTRAL consumer protection authority in India. It calls for product liability and penal consequences in case of breaches and unfair trade practices. It has also put up penalties and consequences for misleading advertisements on an e-platform and suggested a provision for alternative disputes resolution.
Such a bill tells us about the traditions of marketing in India; beginning from caveat emptor to caveat venditor and now inculcating e-commerce. Moreover, it shows the evolution of India and its understanding about consumer protection. Consumer protection is an important aspect for India to achieve the goals of the preamble as everyone has the right to justice and redressal. The consumer protection act empowers the consumer class to speak up for their rights and have a tool to with which to fight. It not only focuses on the consumers but also put emphasis on the other side of the deal i.e. the manufacturers/sellers as there is also a provision of time bound redressal seeking and the provision of penalties on hoax complaints. ssIt shows the evolution of the consumer protection act from a basic namesake act to becoming one of the most powerful tools for the common masses.


[1]Shattuck, Charles E. “The True Meaning of the Term ‘Liberty’ in Those Clauses in the Federal and State Constitutions Which Protect ‘Life, Liberty, and Property.’” Harvard Law Review, vol. 4, no. 8, 1891, pp. 365–392.

[2]Ajeet Mahale, “50 Years of protecting Consumer Rights”, The Hindu, 20 April, 2016

[3]Louis E. Boonie, David L. Kurtz, Contemporary Marketing, Cengage Learning, 2012

[4]Shipra Singh, “Here’s how consumers will benefit under the new Consumer Protection Act”, The Economic Times, 19 August, 2019

[5]The Planning Commission of India’s ‘Report of the working group on consumer protection’(2017)

[6]Satvik Varma, “Consumer Protection Act 2019: Enhancing Consumer Rights”, Bar and Bench, 2 September 2019

[7]Id.

[8]Supra, Note 4.

[9]Sonam Mhatre, Radhika Nair, “India: Consumer Protection Bill, 2019”, Dhaval Vussonji and Associates, 21 August 2019.

[10]Delhi Development Authority V. D.C. Sharma,Revision Petition No.895 Of 2013.

[11]Om Prakash V. Reliance General Insurance, 2017 (9) SCC 724

[12]Klaus Shwab, The Fourth Industrial Revolution, Penguin, United Kingdom, 2017

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