This article is written by Priyal C Bhalerao, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho.com.
Have you ever encountered any discrepancy with the amount, quality or features while purchasing any product? This is nothing but a deficiency of services. Consumer and seller or service provider plays a vital role in our daily life. From buying groceries, booking flight tickets to providing various different services, everything consists of consumers and services. Many times, there is an issue in the quality of products and services which amounts to disputes.
There is cutthroat competition in the market and in order to survive the traders indulge in various kinds of malpractices like overcharging, deficient supply of goods and services, unfair trade practices, defective goods and so on. These factors have given rise to put consumer protection under active consideration and it has to step to ensure the protection and welfare of people. Consumer consciousness has begun to grow. Consumer Protection Act, 2019 (hereafter referred to as ‘the Act’) enables the redressal of disputes arising out of the transactions between the consumers and goods or services provider. Under this Act, consumers can file a complaint about any deficiency as per the provisions given under the Act. The cases of deficiency of service have increased rampantly in India. Thus, the Consumer Protection Act is a way to penalise this negligent behaviour and curb negligent activities by providing justice to the consumers who have suffered loss or injury.
This article is a brief enunciation of the concept of what is services, the deficiency of services and a brief analysis on the deficiency of services under the Consumer Protection Act, 2019. Furthermore, the article speaks about the consumer complaint redressal mechanism and remedies available to the consumer in case of any injustice occurred to them.
Deficiency in services
What is a service?
Service is an intangible benefit availed by the consumer from the service provider. On a daily basis, we all humans hire different services. Term service is defined under Section 2(42) of the Consumer Protection Act, 2019, which include facilities related to banking, financing, insurance, telecom, processing, transport, etc. Service doesn’t include any free service, it should be in paid form.
- Legal consultation is a service where a lawyer is a service provider.
- A medical check-up is a service where a doctor is a service provider.
- Teaching is a service where the teacher is a service provider.
- Internet facility is a service.
What is a deficiency?
According to Section 2(11) of the Consumer Protection Act 2019 (“the Act”), deficiency is any sort of fault, imperfection, shortcoming or defect in the feature, quality, amount, nature, worth, authenticity, capacity and standard which is obligatory to be maintained and regulated as per the laws and statutes in function or any agreement/contract claimed by the seller, with respect to the products and goods. Including any act of negligence, omission or commission by the seller which causes loss to the consumer, which a prudent seller is supposed to do or is supposed to omit, but deliberately does the contrary, such actions amount to ‘deficiency of service’. These definitions help to understand the clear meaning of deficiency in services. Whenever there is any sort of deficiency in services, the customer is exploited which impacts and causes loss of money. Any kind of negligence or omission or commission can cause injury to consumers.
What is the deficiency of services under the Consumer Protection Act, 2019?
In today’s era, services hired or availed of by the consumers have assumed the most important place for the people globally. The Act applies to all goods and services as expressly provided in any service sector where there is a buyer-seller relationship, such as the hospitality, entertainment, maintenance, railways, banks, electricity, construction, legal aid, telex, courier, insurance, education, transportation, aviation, hospitality etc. Deficiency of service can have minor to grave consequences, ranging from negligence, inconvenience or harassment to mental or physical injury to death, thereby leading to legal consequences. The services for consideration offered whether by a private person, firms, companies or by the government or the corporate bodies, act as the factor for growth and development of the country and any deficiency in these services would lead to action under the Act. The sole purpose of the Consumer Protection Act, 2019, is to protect and safeguard the interests of consumers. It not only covers within its ambit physical platforms for a buyer-seller relationship but also recognizes services provided by e-commerce platforms.
Examples of deficiency of services:
- Inappropriate treatment done by a doctor leading to an increase in patient’s suffering is the deficiency in service.
- A customer buys a ticket for an AC bus. But the AC of the bus does not work, which is a deficiency of service.
Analysis of deficiency of services under the Act
The Act imposes strict liability on the manufacturer, distributors, suppliers and retailers for causing injurious harm by its defective products or services. Notwithstanding any contractual obligations and limitations of the liability, if a product or any of its components fails to comply with the necessary standards and therefore causing a defect in the product, shall make the manufacturer of the product directly liable for damages under the Act or the common law of negligence. Subsequently, the action can be brought for injury, death or any damages caused to a person or property under the Act due to a defect of the product. This means that there is no need for consumers to prove that the manufacturer was negligent for filing the suit against the manufacturer. The consumer only needs to prove that the defect in the product, the damage or injury was caused to the consumer by the product or service only.
Unfair trade practice
Unfair trade practices refer to the use of various deceptive, fraudulent, or unethical methods to obtain business and promote its sale of goods and services. The manufacturer, seller and distributor use illegal and illicit means which includes, false advertising, misrepresentation or false representation or misleading of a good or service, deceptive pricing, false free prize or gift offers and noncompliance with manufacturing standards. An unfair trade practise is sometimes referred to as “deceptive trade practices”.
According to the Consumer Protection Act, 2019, E-Commerce Rules on unfair trade practice are laid down under the Consumer Protection E-Commerce Rules. These rules are applicable to all marketplaces, inventories, e-commerce portals and other entities including foreign entities which are situated outside India but supply goods and services to Indian customers. The professional and non-professional activities are exempted from the applicability of these Rules.
As per these rules, e-commerce entities are mandatorily required to dispense information such as payment options, warranty, refund policy, exchange rules, tracking information, shipment details etc. Herein, if the goods or products sold are not up to the mark or quality as portrayed, then sellers are liable to take them back or exchange them accordingly. If any issue arises it is mandatory to answer any query or complaint filed by a consumer within 48 hours and shall provide proper redressal to such consumer complaint within the period of 1 month from the date of receipt.
Consumer complaint redressal mechanism
The consumer can approach Consumer Courts constituted under the Act, in case of any deficiency in services. The complaint can be filed according to the procedure established under the Consumer Protection Act, 2019. A complaint consists of written allegations for claiming liability against the manufacturer, the seller, the product, or the service provider. Such complaints can be filed by one consumer or more than one consumer, any registered voluntary consumer association, heirs, or the legal representatives of the consumer, the central or state government. In the case of a minor, his/her parents or guardians can file the complaint on behalf of the minor.
Nowadays, consumer complaints can be registered electronically. The whole adjudicating procedure has been simplified by permitting electronic filing and also empowering and authorizing District and State Consumer Forums to address to review applications and also advise mediation.
In India, there is a 3-tier system of Consumer Courts, such as National level, State level and District level. Wherein the aggrieved consumers can approach as per the valuation of matter in concern, for redressal and adjudication of disputes. After recognizing the matter in dispute, the further step is to understand the pecuniary jurisdiction of the case.
The pecuniary jurisdiction of the consumer cases
- District Consumer Disputes Redressal Forum: Rs. 1 Crore or less.
- State Consumer Disputes Redressal: Between Rs. 1 Crore to Rs. 10 Crore.
- National Consumer Disputes Redressal Commission: More than Rs. 10 Crore.
Recent case laws related to deficiency in services
1. Gurshinder Singh v. Shriram General Insurance Company Ltd. (2020)
In this case, the appellant had got his tractor insured with the respondent. Later, the tractor was stolen and an FIR was lodged on the same day. However, the claim was submitted to the respondent. It was rejected on the ground that intimation was given after a delay of 52 days. The appellant filed a consumer complaint before the District Consumer Forum. Furthermore, on appeal, the Supreme Court held that if there is a mere delay by a person in intimating the insurance company about the theft, this cannot be the ground to repudiate an insurance claim.
2. Amitabh Dasgupta v. United Bank of India
The case had gone into appeal. The appellant’s mother took a locker on rent in the Deshapriya Park, Kolkata Branch of the respondent bank. The appellant/complainant was included as a joint holder of the locker. The appellant visited the respondent bank to operate the locker and deposit the locker rent. However, the appellant was informed that the bank had broken open his locker for non-payment of rent dues. Further, that the locker had subsequently been reallocated to another customer. When the appellant went to collect the contents of the locker, he found only two of the seven ornaments that had been deposited in the locker in a non-sealed envelope. However, the respondent bank contended that only those two ornaments were found in the appellant’s locker when it was broken open. That the same is evident from the inventory prepared by the respondent. When the locker was broken open in the presence of an independent witness. Subsequently, the appellant filed a consumer complaint before the District Consumer Forum. Furthermore, on appeal, the Supreme Court issued guidelines on allotting and operating of lockers and the court held that banks will be liable under the Consumer Protection Act for deficiencies in locker services.
In the light of these case laws, we can see that the issue of deficiency in services has mostly been interpreted by the courts in the favour of consumers and high significance has been attached with the kind of services that companies provide.
As the world is on the track of development there is a rampant rise in disputes too. Law must keep pace with the needs and demands of society. Deficiency of service can have small or grave consequences, ranging from negligence, inconvenience, injury or death, thereby leading to legal consequences. Subsequently, the manufacturer, seller, distributor and providers can also be liable for deficiency of services. The Consumer Protection Act, 2019 grants a remedy to the consumers against any deficient service or goods provided by the seller or service provider by providing relief in terms of compensation as per the Act.
- International Journal of Research, A Critical Analysis of Deficiency in Services under Consumer Protection Act, 1986, by Anil Kumar
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