Consumer Protection In India
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This article is written by Sonali Chauhan, a student of Lloyd Law College, Greater Noida. The author, in this article, has discussed the concept of Consumer Protection and Tort.

Introduction

By awarding compensation, the law of tort is primarily concerned with redressing wrongful civil actions. Conflict of interest is bound to occur in a society where men live together, and they can cause damage to one or the other from time to time. Moreover, tortious liability has come to be used against manufacturers and industrial units with rapid industrialization. The Law of tort came from Common Law, and by and large, this branch of law remains uncodified. Tortious liability has only been codified to a very limited extent, such as worker’s compensation,   motor vehicle accidents, environmental degradation, consumer protection and so on.

The development of the consumer protection regime is quite young and can be traced back to the rights of the Bill of Consumers in which the recognition of consumer rights began at an international level. This Bill acknowledged four important consumer rights, namely: 

(i) The right to safety; 

(ii) The right to be informed; 

(iii) The right to choose; and 

(iv) The right to be heard. 

These consumer rights were further reinforced bypassing of a resolution by the UN General Assembly on 9 April 1985, in which general guidelines were issued by the General Assembly of the United Nations which included: 

(i) Physical safety, 

(ii) Protection and promotion of consumer economic rights, 

(iii) Standards for the safety and quality of consumer goods and services, 

(iv) Measures enabling consumers to obtain redress, 

(v) Measures relating to specific areas like food, water and pharmaceuticals; and (vi) Consumer education and information programs. 

Object

On the domestic front, the consumer movement began with the enactment of the Consumer Protection Act, 1986 (hereinafter referred to as the CPA), which aimed to provide “for better protection of consumers ‘ interests and for the establishment of quasi-judicial authorities for the settlement of consumer disputes”. This Act has primarily given statutory recognition to the Consumer’s rights in India. These rights, specified in the Act, include:

(i) The right to be protected against the marketing of goods and services which are hazardous to life and property; 

(ii) The right to be informed about the quality, quantity, potency, purity, standard and price of goods or services as the case may be so as to protect the consumer against unfair trade practices; 

(iii) The right to access to a variety of goods and services at competitive prices; 

(iv) The right to be heard and be assured that consumer interests will receive due consideration at appropriate flora; 

(v) The right to seek redress against unfair trade practices or unscrupulous exploitation of consumers; and 

(vi) The right to consumer education.

However, before these developments, the concern for protecting the rights and interests of consumers may be located under Tort Law, which is equally effective and enforceable even now. Therefore, this monograph tries to throw light on the relationship between Tort Law and Consumer Protection with special emphasis on cases of medical negligence. The primary aim of the consumer protection regime is to protect against deficiency in service and defects in goods. Thus, these aspects will be discussed primarily under tort law and consumer laws, with the sector-specific treatment of consumer cases. Insurance, transport, banking and finance, medical, etc. are the sectors specifically included in this monograph.

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Consumer Protection In India

In India, in view of the ever-increasing population and the consequent need for many goods and services of which there is no matching supply, the need for consumer protection is crucial. India’s increased consumer exploitation could be attributed to a lack of education, poverty, illiteracy, lack of information, Indians’ traditional views of suffering in silence and their ignorance of the legal remedies available in such cases.

In India, consumerism is as old as trade. There are references in Kautilya’s Arthashastra to the concept of consumer protection against exploitations such as manipulation of weights and measures and adulteration. Also for these offenses, the same book provides punishment. Book IV of Kautilya’s Arthashastra, Chapter II, “The Removal of Thorns,” deals in-depth with consumer protection against merchants. When a trader sells or mortgages inferior commodities by misrepresenting them as superior commodities or by adulterating grains, oils, salts, scents and medical articles with similar inferior quality articles, the said trader is not only to be punished with a fine but also to be compelled to make good the loss.

Differences between Law of torts and Consumer Protection Act, 1986

Law of Tort

Consumer Protection Act

In the case of tort, damages are always unliquidated, or unascertained and invariably they are not, and cannot in fact be real.

In the case of the CP Act of 1986, the aggrieved consumer is entitled to liquidated damages only, i.e. pre-settled or actual damages. Redressal agencies can ascertain the damages.

A tort is an infringement of a right in rem.

In the case of this Act, the consumer is injured or suffer loss then, it is an infringement of a right in personam.

The philosophy of the law of tort is a new subject and formulated into a separate branch just from the beginning of the 20th century.

Consumer awareness, consumerism, consumer rights are formulated in a separate law department is a very fresh subject, formulated in a separate law department just twenty years ago. 

In tort, the duty is one that is imposed by the law and is owned by the community at large. This principle is known as “Respondeat Superior”.

The duty is also imposed by the law in consumerism but is owned by the seller /manufacturer/trader. This duty’s principle is known as “Caveat Venditor”. 

Sometimes the motive is an essential factor in determining the liability, for example, malicious prosecution, defamation, etc.

The motive in consumerism is not a key factor. The defaulting party, i.e. the seller/trader/manufacturer, must pay the costs of the goods or services or replace them with new defect-free goods or actual damages, without any inquiry as to the motive.

Tort law has not been codified. It’s the law made by the judge.

While consumer law is new, it is codified.

In tort, a person may be entitled to such damages that he has not suffered in actuality. (injuria sine damnum). 

Consumers are entitled only to actual damage or replacement of new goods or services under consumer law.

In tort, exemplary or vindictive damages are awarded.

Actual damages are generally awarded to consumers. Exemplary or vindictive damages can also be awarded in exceptional cases where the seller acts in bad faith and negligently.

There is no establishment of separate courts. The cases of tort are also enquired in ordinary civil and criminal courts.

Separate consumer disputes redressal agencies are established in India, one at National level-National Commission, second is at State level-State Commission, and the third District level-District Forum.

The plaintiff should pay the court fee, the fee for the lawyer, etc.

There is no fee for the court or for the lawyer.

Generally, the petition must be filed only by the aggrieved. The litigation of public interest is allowed to a limited extent in exceptional circumstances. PIL is now highly prevalent in environmental law, coupled with tort.

Public interest litigation is allowed. The complaints can also be filed by third parties on behalf of aggrieved consumers.

The inquiry will be carried out for a long time.

The inquiry must be concluded within a prescribed time by the redressal agencies as prescribed by the Act.

The proceedings are conducted in accordance with the rigid legal principles, and natural justice is also followed.

The proceedings are conducted in a fast and simple manner. There are no legal procedures to follow. Natural justice principles may not also be taken into consideration.

The courts investigating the cases of tort are purely judicial bodies.

Consumer disputes redressal agencies are not judicial bodies. They are quasi-judicial bodies.

The judge or group of justices shall investigate and decide the cases of tort. The judge or group of justices shall possess excellent legal knowledge and have previous judicial experience.

The president and the members are investigate and decide on the cases. They all do not need to have legal abilities and knowledge. From the judiciary line, only the president is appointed. The remaining members are taken from the public, representing different walks of human life. They shall be a person of ability, integrity, and standing, and have sufficient understanding or experience of economic, law, trade, accountancy, business, public affairs or administration issues, or have demonstrated the ability to address them.

There is no mandatory requirement to appoint a woman as a member.

The Act, 1986 imposes mandatory instructions that one woman should be a member of the consumer disputes redressal agencies.

In tort cases, the courts interpret the laws beyond their legal provisions and take more into consideration the humanitarian values. Thus, in awarding damages to the victim, they search for new principles. All cases of environmental pollution are evolved only from tort law.

The redressal agencies follow mercantile principles only in consumer cases. There is no doubt that consumer laws evolve from tort law. But they are circumscribed by strict rules and principles. It is impossible for redressal agencies to go beyond those rules. However, the courts evolve new principles in cases where the consumer cases are connected with tort. Example:  medical consumer cases.

Law of tort and Product Safety Standards

It should be noted that in India common law tortious remedies are still available to consumers in addition to the various legislation related to consumer protection. This is particularly important in such a situation where an injured consumer of goods can not claim damages under contract law even if they harm him if he is not the purchaser of the goods but some subsequent user. Such a user may be an employee or family member of the primary buyer, or someone else may inadvertently come into contact with the goods, such as a passer-by or a donee. Contractual remedies are not available in these cases because there is no privity of contract between the victim and the retailer or dealer. Nevertheless, tort remedies may be available against parties who owe such ultimate consumers a tortious liability. Such parties may include two or more of the manufacturer, supplier, importer, distributor or retailer.

The foundation of such a tortious remedy can be traced back to Donoghue v. Stevenson case, which laid down the principle that a manufacturer owes a duty of care to every possible consumer of his product and that such a consumer can bring an action against the manufacturer even if there is no contract between the two parties. The plaintiff (consumer) here is entitled to damages for loss caused by any defective, unsuitable or hazardous product and this liability may arise from the following circumstances-where the defendant is negligent; where the defendant has defrauded the plaintiff; or where he has committed a willful act. In the case of fraud, the tort of deceit allows the defendant to recover damages for fraud that the defendant practices on him. If the defendant is negligent, the tort of negligence would provide the consumer with a right to seek redress for the damage suffered as a result of the defective and unsafe product. In the case of service deficiency, this tort of negligence is also available.

In tort cases, the rule of strict liability uses to play a very important role, but in today’s world, this has changed along with the rapid industrialization, scientific and technological advancement. Such progress has resulted in increased environmental and industrial hazards. A few industrial accidents in the 1980s led to substantial changes in the laws of no-fault liability.

The Supreme Court of India introduced the rule of absolute liability, which superseded the rule of strict liability laid down in the case of Rylands v. Fletcher, which had certain exceptions. The term’ absolute’ means total or no exception in itself. There are no exceptions in this new definition of absolute liability to which the defendant can rely upon to escape liability.

Conclusion

Indian tort law while being less developed, based on English tort law and English court decisions. As a result, Indian consumers will also have to resort to the decisions of the English courts on the product liability domain to base their claims under tort law. But the liability was based on strict liability under the English Consumer Protection Act 1987. As a result of this product liability under tort law, more consumers have been oriented since the strict liability in place of negligence-based liability in England has been supported. It is important to note here that the Indian law under C.P. Act 1986 bases the product on the trader’s and service provider’s negligence. Thus, the Indian courts will follow either the Common Law principles of negligence-based liability or strict liability as proposed in the Ryland v. Fletcher case and under C.P. Act,1987  while dealing with product liability under tort law. 

As a result, the  Consumer Protection Act,1986 was enacted with the aim of providing Indian consumers with “cheap, simple and quick” justice.


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