By Subhojyoti Acharya
Vth Year. BA.LLB.(Hons),
Dept. of Law, Calcutta University.
ABSTRACT
This
paper aims to define Consumer Protection Act, 1986 as amended in 2002 along
with relevant laws and explanations thereto. This paper also deals with
relevant sectors where amendments have taken place and also the major
loopholes, which were still left out unattended. The paper tried to cover all
common FAQs (Frequently Asked Questions) with regard
to basic rights and remedies of a consumer. A sample of complaint petition is
hereby presented in order to provide a clear idea regarding the process and
procedure of a consumer court.
I. Introduction-
The Consumer Protection Act, 1986 (68 of 1986) is a milestone in the history of socio-economic legislation in the country. The main objective of the new law is to provide for the better protection of the consumers unlike existing laws, which are punitive or preventive in nature. The Act intends to provide simple, speedy & inexpensive redresses to the consumer's grievances.
In India various
Acts intended to protect the consumers against different forms of exploitation
were enacted, such as, the Indian Penal Code, I860; Indian Contract Act, 1872;
Drugs Control Act, 1950; Industries (Development and Regulation) Act, 1951;
Indian Standards Institution (certification marks) Act, 1952; Drug and Magic
Remedies (Objectionable Advertisement) Acts, 1954; Prevention of Food
Adulteration Act, 1954; Essential commodities Act, 1955; Trade and Merchandise
Marks Act, 1958; Hire purchase Act, 1972; Cigarettes (Regulation of Production,
Supply and Distribution) Act, 1975; Prevention of Black marketing and
Maintenance of Supplies of Essential Commodities Act, 1980: Essential
commodities (Special Provisions) Act, 1981; Multi-State Cooperative Societies
Act, 1984; Standard of Weights and Measures (Enforcement) Act, 1985; and
Narcotic Drugs and Psychotropic Substances Act, 1985. Some significant consumer
protection enactments of pre-independence time are the Sale of Goods Act, 1930;
Agriculture Produce (Grading and Marketing) Act, 1837 and Drugs and Cosmetics
Act, 1940.
II. A brief
historical background about the enactment the Act -
The Consumer Protection Act, 1986 (here in after to
be referred to as the ‘Act’) is one of the benevolent social
legislation intended to protect the large body of consumers from
exploitation. The Act has come as a panacea for consumers all over
the country and has assumed the shape of practically
the most important legislation enacted in the country during the
last few years. It has become the vehicle for
enabling people to secure speedy and in-expensive redressal of their grievances. With the enactment of
this law, consumers now feel that they are in a position to declare “sellers be
aware” whereas previously the consumers were
at the receiving end and generally told “buyers be aware”.
III.
Extent and coverage of the Act -
The C.P. Act
applies to all goods and services, excluding goods purchased for resale or for
commercial purpose & services rendered free of charge & under contract
of personal service.
The provisions of this Act cover ‘Products’ as well as
‘Services’. The products are those which are manufactured or produced and
sold to consumers through wholesalers and retailers. The services are of
the nature of transport, telephones, electricity, constructions, banking,
insurance, medical treatment etc. etc. The services are, by and
large; include those provided by professionals such as Doctors, Engineers,
Architects, and Lawyers etc.
IV. Procedures and practices of this Act-
A written complaint, as amended by Consumer Protection (Amendment) Act,
2002, can be filed before the District Consumer Forum (upto
Rupees twenty lakhs), State Commission (upto Rupees
One crore), National Commission ( above
Rupees One crore) in relation to a product or
in respect of a service, but does not include rendering of any service free of
cost or under a contract of personal service. The service can be of any
description, the illustrations given above are only
indicative and not exhaustive.
The Consumer Protection Act is an alternative and cheapest remedy already
available to the aggrieved persons/consumers by way of civil suit. In the complaint/appeal/petition
submitted under the Act, a consumer is not required to pay any
court fees or even process fee.
Proceedings are summary in nature and endeavour is
made to grant relief to the parties in the quickest possible time keeping
in mind the spirit of the Act, which provides for disposal of the cases within
possible time schedule prescribed under the Act.
If a
consumer is not satisfied by the decision of the District Forum, he can
challenge the same before the State Commission and against the order of the
State Commission a consumer can come to the National Commission.
In order to attain the objects of the Consumer Protection Act, the National Commission has also been conferred with the powers of administrative control over all the State Commissions by calling for periodical returns regarding the institution, disposal and pendency of cases. National Commission is empowered to issue instructions regarding, (1) adoption of uniform procedure in the hearing of the matters; (2) prior service of copies of documents produced by one party to the opposite parties; (3) speedy grant of copies of documents; and (4) generally over-seeing the functioning of the State Commissions or the District Forums to ensure that the objects and purposes of the Act are best served without in any way interfering with their quasi-judicial freedom.
V. Some commonly related FAQ’s-
A. Who is a Consumer?
A consumer is any person who buys any goods for a consideration and user of
such goods where the use is with the approval of a buyer, any person who
hires/avails of any service for a consideration & any beneficiary of such
services, where such services are availed of with the approval of the person
hiring the service. The consumer need not have made full payment. Goods mean
any movable property and also include share, but do not include any actionable
claims. Service of any description is covered under C.P.Act
& includes Banking, financing, insurance, transport, processing, housing,
construction, supply of electrical energy, entertainment, amusement, board and
lodging, among others.
B. Who can file a complaint?
A complaint on a
plain paper either handwritten or typed, can be filed by a consumer, a
registered consumer organization, central or State Government & one or more
consumers, where there are numerous consumers having the same interest. No
stamp or court fee is needed.
C. Consumers can make complaints against which of the
things?
A) Any
unfair trade practice or restrictive trade practice adopted by the trader.
B) Defective
goods.
C) Deficiency
in service.
D) Excess
price charged by the trader.
E) Unlawful
goods sale, which is hazardous to life and safety when used.
D. Where to file a complaint?
The
Consumer Protection Act has provided for a three tier system popularly known as
"Consumer Courts" :-
A) District Forum:
For claims up to Rs.20 lakhs.
B) State
Commission: For claims above Rs.20 lakhs but less
than Rs.1 crore.
C) National
Commission: For claims above Rs. 1 crore.
The
nature of complaint must be clearly mentioned as well as the relief sought by
the consumer. It must be filed in quadruplicate in District Forum or State
Commission (as the case may be) if there is only one opposite party. Otherwise,
additional copies are required to be filed. Generally complaint should be decided within 90 days from
the date of notice issued to the opposite party. Where a sample of any goods is
required to be tested, a complaint is required to be disposed off within 150
days.
E. What are the reliefs available to consumers?
Consumer courts may grant one or more of the
following reliefs :-
A) Repair
of defective goods.
B) Replacement
of defective goods.
C) Refund
of price paid for the defective goods or service.
D) Removal
of deficiency in service.
E) Refund
of extra money charge.
F) Withdrawal
of goods hazardous to life and safety.
G) Compensation
for the loss or injury suffered by the consumer due to
negligence of the opposite party.
H) Adequate
cost of filing and pursuing the complaint.
I) Grant
of punitive damages.
F. What Is The
Legislation That Ensures All These Rights?
It is the
Consumer Protection Act, 1986. The act seeks to promote and protects the
interest of consumers against deficiencies and defects in goods or services. It
also seeks to secure the rights of a consumer against unfair or restrictive
trade practices, which may be practiced by manufacturers and traders. There are
various levels of ad judicatory authorities that are set up under the Act,
which provide a forum for consumers to seek redressal
of their grievances in an effective and simple manner.
G. What Are The Other
Advantages To The Consumer Under This Law?
The consumer under this law is not required to
deposit advalorem court fees, which earlier used to
deter consumers from approaching the Courts. The rigors of court procedures
have been dispensed with and replaced with simple procedures as compared to the
normal courts, which helps in quicker redressal of
grievances. The provisions of the Act are compensatory in nature.
H. What Is The Role Of CORE & Other Consumer
Organizations Under The Act?
The Act makes provisions where the
machinery under the Act can be set in motion by the consumer organizations
involved in consumer awareness movements in the country. The Act provides
“recognized consumer associations” can move the agencies. The organization can
take up the case of the consumer and it is not necessary for you to be a member
of the organization.
VI. Amendments to the Consumer
Protection Act-
In the previous
issue of Express Healthcare Management, some of the amendments to Consumer
Protection Act were covered. In this issue we cover amendments made from
Section 10 to section 25.
The Consumer Protection Act, 1986 was last amended in 1993. Subsequently in view of experience gained in operation of the Act, major changes are now being made to bring into force Consumer Protection (Amendment) Act, 2002. The amendments will be brought onto force by issue of notification in the Official Gazette.
Effects
of amendments, a general study-
The amendments to section 10 provide minimum age of thirty-five years,
minimum qualification of graduation and minimum experience of ten years for
members of the District Forum. It also provides disqualification for the office
of member. A new proviso to sub-section (1A) is inserted to provide that where
the President of the State Commission is, by reason of absence or otherwise,
unable to act as Chairman of the Selection Committee, the State Government may
refer the matter to the Chief Justice of the High Court who shall nominate a
sitting Judge of that High Court to act as a Chairman to avoid delay in
selection. It also amends sub-section (2) to provide for reappointment of
Presidents and Members to enable utilization of their experiences for a longer
period. It also provides that persons already holding office of President or
Member will continue to hold such office till the completion of their term. It
further amends sub-section (3) to provide that the State Government shall
appoint a member on whole-time basis on the recommendations of the President of
the State Commission taking into consideration the workload and other factors
as may be prescribed. Amendment to section 11 enhances the jurisdiction of the
District Forum to entertain complaints where the value of the goods or services
and the compensation claimed does not exceed rupees twenty lakhs.
This will be more convenient for the complainants and also reduce the number of
complaints filed with the State Commission and National Commission.
Section 12 is substituted to provide that every complaint filed with the District Forum shall be accompanied with such amount of fee as may be prescribed. It also provides that he admissibility of the complaint shall ordinarily be decided within twenty-one days from the date on which the complaint is received and that once admitted a complaint shall not be transferred to any other Court or Tribunal.
This will help
to quicken disposal of complaints. The amendments to section 13 require the
District Forum to refer a copy of the admitted complaint within twenty-one days
from the date of its admission to the opposite party to give his version within
the prescribed time. It also explicit the provision for ex parte order as well
as dismissal of complaint on non-appearance of complainant.
It includes a new sub-section (3A) to provide that complaint shall be heard as expeditiously as possible and Endeavour made to decide the complaints within the prescribed period. Adjournments would ordinarily not be granted, and if granted for reasons to be recorded in writing by the forum, an order as to the costs occasioned by the adjournment would also be made by the forum. It is also provided that in the event of a complaint being disposed of after the period so specified, the District Forum shall record in writing, the reasons for the same at the time of disposing of the said complaint.
It further includes a new sub-section (3B) to enable the District Forum to pass interim orders where required. It also includes a new sub-section (7) for the substitution of parties in accordance with the provisions of Order XXII of the First Schedule to the Code of Civil Procedure, 1908 in the event of death of the complainant or opposite party.
These amendments
will facilitate quicker disposal of cases, enable complaints to get immediate
relief where required, and streamline procedures. The amendments to section 14
empower the District Forum if it is satisfied that the allegations contained in
the complaint are proved, also to issue orders directing the opposite party,
inter alia, to pay punitive damages, cease manufacture of hazardous goods and
desist from offering services which are hazardous in nature, pay such sum not
less than five per cent of the value of defective goods sold or services
provided where loss or injury has been suffered by a large number of consumer
who are not conveniently identifiable, and to issue corrective advertisement to
neutralize the effect of misleading advertisement.
VII.
Some major loopholes of the Act still left unplugged by the 2002 Amendments-
A
critical study-
1) The main problem regarding the above empowerment and the
relevant provision is the fact that the Gazette notification for the conferment
of First Class Magistrate’s powers to the Consumer Forums or Commissions is
still not issued. Thus it is practically impossible for the Forums or
Commissions to exercise this power conferred by the Act.
2) Another lacuna present in
the amended Act is the relatively softer approach adopted by the Act towards
the judgment debtor in its certain provisions. The amendment of 2002 has not
done anything concrete to fill this lacuna. For instance, S. 24 of the Consumer
Protection Act, 1986, which reads as follows:-
S.24: Finality
of order:-
Every order
of a District Forum, State Commission or the National Commission shall, if no
appeal has been preferred against such order under the provisions of this Act,
be final.Thus this provision implies that non-
preferment of appeal renders the order final. Conversely, preferring an appeal
means that order is not final. Hence once an appeal is preferred by the
judgment debtor, he gets a stay against the execution and thus there cannot be
any execution.
The judgment debtors have certainly
misused this provision of the Act. It is a general pattern that judgment
debtors just buy time before the Forum or Commission stating that appeal has
been preferred. Even if the appeal is not admitted and may take quite some time
for the purpose, even if the required bank guarantee is yet not given and the
stay is still not granted, the consumer cannot get the execution of the
original order done. Thus justice still eludes the hapless consumer while the
seller (judgment debtor) more often than not manages to get adjournment. The
Act is silent regarding a ‘stay order’. Even the Amendment Act of 2002
disappoints in this regard. This Section urgently calls for amendment
substituting the words “appeal preferred” with the words stay granted.
3) Another important confusion is created by the amended S.25
of the Act that reads as under:
S.25: Enforcement of
orders by the Forum, the State Commission or the National Commission:-
(A) where an interim order
made under this Act, is not complied with the District Forum or the State
Commission or the National Commission, as the case may be, may order the
property of the person, not complying with such order to be attached.
(B) No attachment made under
sub-section (1) shall remain in force for more than three months at the end of
which, if the non-compliance continues, the property attached may be sold and
out of the proceeds thereof, the District Forum, or the State Commission or the
National Commission may award such damages as it thinks fit to the complainant
and shall pay the balance, if any, to the party entitled thereto.
(C) Where any amount is due from any person under
an order made by a District Forum, State Commission or the National Commission,
as the case may be, the person entitled to the amount may make an application
to the District Forum, the State Commission or the National Commission, as the
case may be, and such District Forum or the State Commission or the National
Commission may issue a certificate for the said amount to the Collector of the
district (by whatever name called) and the Collector shall proceed to recover
the amount in the same manner as arrears of land revenue.
If we carefully give a perusal to the above provisions of the above section, we find that by virtue of S.25 (1) the provision of attachment is against the interim order and not the final order. But looking at the pattern of judgments, it can be clearly discerned that generally attachments are aimed at awarding compensation to the aggrieved party, mostly the consumers. Compensations are usually awarded as part of the final order and the interim order almost never awards compensation. Interim orders aim at compelling or restraining any agency for the commission or omission of some act but these interim orders are seldom used by the Forums or Commissions to attach or seal the property of any business person, manufacturer, banks, medical establishments, etc. for the simple reason that the Forums/ Commissions are not aware if there will be any compensation order against them at the conclusion of the proceedings before Consumer Protection Agencies. Since no recovery proceeding is provided under the Act, there cannot be any assessment of the dues and thus no interim attachment order. Thus a more practically feasible approach would be to replace the word interim order with all orders.
(D) Also S. 25 (3) provides
for issuance of a certificate to the Collector for recovery of the amount due
from any concerned person. The consumers have to contact the Collector for
recovery of their dues because there is no further provision as to what is the
role of Consumer Forums/ Commissions after that. After a long wait for the
order from the Forum, the hapless consumers still have to undergo the rigor of
going to the collector for the realization of the dues. There is no clarity
regarding who is responsible for the follow up with the revenue department and
the stipulated time limit thereto. Thus the concerned provision of S. 25 (3)
should provide for the revenue department to send the arrears to the Forum
itself for reimbursement to the consumer.
Thus an amendment is
required to take care of the afore-mentioned problem.
However while critiquing certain provisions of the Act, at the same time it is
necessary to point out certain other provisions which are the product of the
2002 Amendments and have plugged many loopholes by their progressive wording.
These provisions brought about by the amendment have gone a long way in doing
away the perennial problems of delay.
1) Amendment to Section
11 enhances the jurisdiction of the District Forum to entertain
complaints where the value of the goods or services and the compensation
claimed does not exceed rupees twenty lakhs. This
will be more convenient for the complainants and also reduce the number of
complaints filed with the State Commission and National Commission.
2) Section 12 is substituted to provide
that every complaint filed with the District Forum shall be accompanied with
such amount of fee as may be prescribed. It also provides that the
admissibility of the complaint shall ordinarily be decided within twenty-one
days from the date on which the complaint is received and that once admitted a
complaint shall not be transferred to any other Court or Tribunal. This will
help to quicken disposal of complaints.
3) The
amendments to section 13 require the District Forum to refer a copy of the
admitted complaint within twenty-one days from the date of its admission to the
opposite party to give his version within the prescribed time. It also provides
the much needed provision for ex parte order as well as dismissal of complaint
on non-appearance of complainant.
It includes a new sub-section (3A) to provide that
complaint shall be heard as expeditiously as possible and endeavour
made to decide the complaints within the prescribed period. Adjournments would
ordinarily not be granted, and if granted for reasons to be recorded in writing
by the forum, an order as to the costs occasioned by the adjournment would also
be made by the forum. It is also provided that in the event of a complaint
being disposed of after the period so specified, the District Forum shall
record in writing, the reasons for the same at the time of disposing of the
said complaint.
It further includes a new sub-section (3B) to
enable the District Forum to pass interim orders where required. It also
includes a new sub-section (7) for the substitution of parties in
accordance with the provisions of Order XXII of the First Schedule to the Code
of Civil Procedure, 1908 in the event of death of the complainant or opposite
party.
These amendments will facilitate quicker disposal of
cases, enable complaints to get immediate relief where required to the hapless
consumers. The procedural delays will be done away with.
4) New section 19A provides
that endeavour shall be made to dispose of appeals
filed before the State Commission or the National Commission within ninety days
from the date of admission.
These are just some of the
useful amendments and the afore-mentioned list is definitely not exhaustive. In
fact all the amendments made to the Consumer Protection Act by the 2002
Amendments aim at furthering the efficiency of the Act and doing away with
procedural delays which render the consumers disillusioned and dissatisfied.
These Amendments have been fruitful in providing ‘protection’ to the consumers
in the real sense of the term and served the purpose of the Act. It is hoped
that further amendments would aim at even more efficiency and render the
position of the consumers much stronger in this era of globalization and
privatization where the sudden unchecked advent of Multi National Companies has
to be balanced with the protection of the rights of the consumers by the
legislature and the judiciary.
XI. Acknowledgements-
In order to complete this paper successfully I sincerely thank Shri Manabendra Mandal, the Director of Socio Legal Aid Research and
I also like to thank Mrs Suganti Iyer
whose work on amendments of consumer protection has helped me a lot. A special thanks goes to Mr. S.S. Singh and Mrs Sapna Chadah
(IIPA) whose paper on Consumer Protection inspired me to great extent. I would
also like to acknowledge the work and contribution of V. Balakrishna
Eradi, The First President of NCDRC. (National
Consumer Disputes Redressal
Commission).
X. Bibliography & Online References-
To complete this paper, I have referred to below mentioned
books and online websites.
A.
Consumer
Protection, Law and Practice by Dr. V.K.Agarwal.
B.
National
Consumer Disputes Redressal
Commission.
C.
Consumer
Online Resource & Empowerment Agency.
D.
Legal Service India.com
E.
advantageconsumer.com
F.
Health care Management
G.
State Consumer
Protection Council, Govt. of
H.
Consumer Protection Act,
1986 by R.K. Bangia.