In this blog post, Meenal Nasa, pursuing M.A. in Business law from NUJS, Kolkata, interprets the term “consumer” with reference to beauty services.
A bad hairdo, a cosmetic surgery gone wrong: all you need to know about the legalities involved in enforcing your rights as a consumer.
In this modern era, where it has become indispensable to look good and presentable, a large number of people are spending a considerable amount of money on fashion and maintenance of their looks. This is also because of factors such as improved affordability and greater access. People today spend money on procuring a variety of beauty products and services such as hair styles, makeups, spas, facial & hair treatments and even cosmetic surgeries, which is now moving beyond the exclusivities of the rich and famous.
The consumers of these services expect value for their money in the form of efficient and good quality services. However, quite often they suffer at the hands of unscrupulous service providers through their various acts and omissions such as deficient or negligent services, high prices and misleading advertisements exaggerating the quality of their services or products.
To protect the interest of the consumers from the exploitative and deceptive acts of the service providers and suppliers, the government of India has enacted The Consumer Protection Act 1986 (The Act) which was later amended in 2002. The objective of the Act is to provide a simpler, speedier and cost effective mechanism to address the grievances of the consumers.
It is pertinent here to note that the Act does not protect every “consumer” in the literal sense of the term. The protection is meant only for those persons who fall within the definition of ‘consumer’ as defined in the Act. The interpretation of term “consumer” has been an issue of many legal disputes and debates since the commencement of the Act.
This article aims to resolve whether deficiency or negligence in the performance of beauty services (as described above) fall within the ambit of that Act and also on the remedies and forums available to a consumer who is aggrieved as a result of such deficiencies.
Consumer Protection Act 1986
The Act defines the term “consumer” in relation to goods and in relation to services separately. For our purpose, we will only focus on the definition of the term “consumer” in relation to rendering of “services”. Since the Act gives protection to the consumer in respect of the service rendered to him, the definition of “service” and “consumer” (in relation to services) has to be read in conjunction.
- In relation to services, the Act defines a “consumer” as –
“A person who hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose”.
According to the above definition, a consumer includes two categories of persons –
- The one who hires or avails any services for his/her own benefit.
- Any other person (beneficiary) for whose benefit the services are hired or availed of – provided that such beneficiary has given his consent/approval to receive such services.
These above categories of persons must also satisfy the following criteria to come within the purview of “consumer” for protection under the Act –
- The Services should be Hired or Availed of –
The term hired or availed is not defined under the Act however, according to Black’s law dictionary, the term hire/avail in relation to services means engaging a service for a stipulated reward/compensation.
- Consideration must be Paid or Payable –
As noted above, a consideration is an important element of hiring or availing of services, however, according to the Act, the consideration need not be immediate or one-time payment; the payment could be deferred, paid in installments over an agreed period of time.
- The Person has Not or Will Not Obtain such Services for Commercial Purpose –
Commercial purpose in relation to service has been defined under that Act as “services hired” exclusively for the purposes of earning livelihood by means of self-employment.
From the above, we can decipher that a person who has hired beauty services for his own benefit or for any other person with his/her consent qualifies to be protected under the Act as long as such persons hires or avails of such services for a consideration (usually monetary) which is paid at one go in lump sum or has agreed to be paid in future through installments.
It has also to be kept in mind that the person who is hiring the service of a person for “commercial purposes” cannot claim protection under the Act.
For example – owner of a salon or a spa who hires the services of a beautician or a hairdresser cannot file a consumer complaint against their negligence as such hiring is done to carry out the business of a salon i.e. clearly a “commercial purpose”. Also, the employment of beautician or hairdresser is a “contract of service”, which is excluded from the definition of “service” under the Act, as discussed in the following paragraphs. The Salon owner who is aggrieved by the negligence of his employee may have other remedies under the law but will not be qualified to claim relief under the Act.
Now, let us examine the definition of “service”.
- The term “Service” has been defined under the Act as –
“Service of any description which is made available to potential users and includes but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service.”
From the definition, it is clear that the Act covers services of “any description” whatsoever rendered to potential consumers. Although the definition lists down eight specific industry sectors but does not limit it to services related to only those sectors. The use of the word `any’ in the definition indicates that legislature intended to construe the term in the wider sense extending from one to all.
The definition of services excludes from its ambit the services performed for free of charge or services under a contract of personal service. To sum up, the Consumer Protection Act covers services of any description as long as such services are not performed free of cost and are not “contract of personal service”.
The expression “contract of personal service” is not defined under the Act. To understand this expression, we need to comprehend the difference between “contract of service” and “contract for service”.
The Supreme Court of India, in Dharangadhara Chemical Works Ltd. v. State of Saurashtra, 1957 differentiated between a contract of services and contract for services –
- “A ‘contract for services‘ implies a contract whereby one party undertakes to render services.
For example – professional or technical services, to or for another in the performance of which he is not subject to detailed direction and control but exercises professional or technical skill and uses his own knowledge and discretion”.
- “A ‘contract of service‘ implies a relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance”.
In the case of Indian Medical Association vs V.P. Shantha & Ors, the Supreme Court noted that Parliament has deliberately chosen the expression ‘contract of service’ instead of the expression ‘contract for services’ in the exclusionary part of the definition of `service. The reason being that an employer cannot be regarded as a consumer in respect of the services rendered by his employee in pursuance of a contract of employment.
By affixing the adjective ‘personal’ to the word “service” the nature of the contracts which are excluded is not altered. The said adjective only emphasizes that what is sought to be excluded is personal service only. The expression “contract of personal service” in the exclusionary part of the definition must, therefore, be construed as excluding the services rendered by an employee to his employer under the contract of personal service from the ambit of the expression “service”.
From the above, we can easily decipher that the contract of service which creates a master–servant relationship or an employer-employee relationship between two parties is excluded from the purview of the Act.
For example – the relationship between the salon owner and the hairdresser.
However, services performed under a “contract for service” are covered under the Act, i.e. an agreement to render professional or technical services whereby, a service provider uses his own skill and knowledge without obtaining detailed instructions from the consumer.
For example – when a consumer goes to a hairdresser for a haircut, he can only convey to a hairdresser the kind of haircut he/she wants, how such service is performed is at the discretion of the hairdresser, who will use his own skill and knowledge to give the haircut his/her client desired.
Now, if we read the definition of “consumer” and “services” in conjunction we can conclude that beauty services will come within the purview of consumer protection act as long as they satisfy all the criteria laid down in the respective definitions.
To summarize, the essential criteria are laid down below:
- The services should be availed by a person for his own benefit or another person’s benefit with his/her approval.
- The services should be availed for a consideration which is paid or payable.
- Services should not be availed for a commercial purpose.
- The services should not be under a contract of personal service i.e. a master-servant relationship but could be a contract for service such a consumer going to hairdresser for a haircut.
- The services should not be rendered free of cost.
When Can a Consumer File a Complaint Against a Service Provider?
A consumer can file a complaint against a service provider on grounds such as the service provider charging a higher fee than what was agreed or displayed in his price list, an unfair trade practice and most essentially when a service is found to be deficient.
The term “deficiency” under the Act has been defined as –
“Any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.
There are two essential elements to this definition:
- The term “deficiency” includes any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance.
- Where such quality and manner of performance of service is required to be maintained by or under any law for the time being in force or undertaken to be performed by a person in pursuance of a contract or otherwise.
The above clarifies that willful negligence or fault needs to prove by the aggrieved consumer and it should be based on something that was already agreed upon in the contract or otherwise.
The Supreme court in Ravneet Singh Bagga vs Klm Royal Dutch Airlines And Anr noted that “deficiency in service” cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The deficiency in service has to be distinguished from the tortuous acts of the service provider.
In the absence of deficiency in service, the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service.
In the case of bonafide disputes, no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service.
If the action of the service provider is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act.
The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, the absence of bonafide, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.
The Supreme court in Indian Medical Association vs V.P. Shantha&Ors held that –
“Professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services.”
The above comments of the Supreme Court make it clear that the onus is on the consumer to prove the service provider’s negligence or inefficiency. It is important for the consumer to prove that the service provider did not exercise reasonable care in the discharge of his duties which is ordinarily exercised by professionals performing similar services.
The court has noted that –
“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”.
Therefore, in case willful negligence or default of the service provider is not proved and it is held that service provider acted in a bonafide manner as an ordinary competent person in his profession will do and what is reasonably expected from him, the consumer will not be qualified to claim relief under the Act.
Remedies and the Procedure to Seek Protection Under the Act
The main reliefs granted by a consumer forum under the Act when it is satisfied that any of the allegations contained in the complaint about the “deficiency in the service” are true are:
- A direction to the service provider to remove the deficiencies in the service in question.
- A direction to the service provider to refund the charges paid or payable to the consumer in relation to the service in question.
- And a direction to the service provider to pay compensation to the consumer for any loss or injury suffered by him.
An aggrieved consumer can file a complaint in:
- District Forum
If the value of services and compensation claimed is less than 20 lakh rupees.
- The State Commission
If the value of the goods or services and the compensation claimed does not exceed more than 1 crore rupees.
- The National Commission
If the value of the goods or services and the compensation exceeds more than 1 crore rupees.
The jurisdiction of the Consumer Court would also depend on where anyone of the opposite parties resides or carry on business or where the cause of action arose.
The arising of “cause of action” at a particular place or at different places is determined on the basis of “material acts” like where the services were performed.
For example – where the salon is situated in case of deficient beauty services.
The intent of the legislature is to provide a speedier and cost effective redressal to the consumers, therefore, no court fee is required to be paid to these forums and there is no need to engage a lawyer to present or argue the case.
The consumer in his complaint should clearly state the material facts of the case. The following standards should be kept in mind while drafting a consumer complaint –
The complainant should clearly state:
- Nature of service hired/availed.
- The nature of deficient service rendered.
This would also include the consequence of such deficiency or negligence.
- The “chain of events” that ultimately resulted in the deficiency.
The complainant should clearly state what happened on each of the relevant dates.
- The facts explained should be material to all the relief claimed such as refund or correction of deficiency or claim of damages.
- The intention of the parties “in good faith” or “bad faith” should be reflected in the complaint”.
- Details of what transpired the consumer to pursue litigation against the consumer should be clearly stated.
The acts and omission of the parties prior to commencing legal proceeding should be clearly stated in the complaint.
- The relief claimed should be stated clearly.
When a Consumer files a written complaint, the forum, after admitting the complaint, sends a written notice to the opposite party asking for a reply in writing to be submitted within 30 days of the receipt of the notice. Thereafter, the forum, depending on the facts of each case, would ask the parties to file affidavit or evidence which could be in the form of judicial decisions, interrogatories, expert evidence etc.
The Act has conferred the consumer forums with special powers such as:
- The summoning and enforcing of the attendance of any defendant or witness and examining the witness under oath.
- The discovery and production of any document or another material object producible as evidence.
- The reception of evidence on affidavits.
- The summoning of any expert evidence or testimony.
- Issuing of any commission for the examination of any witness.
An appeal against the decision of the District Forum can be filed before the State Commission. An appeal against the decision of State Commission will be filed in the National Commission and from the National Commission to the Supreme Court. The time limit within which the appeal should be filed is 30 days from the date of the decision appealed against.
Consumer awareness is constantly growing in India and consumers today are proactive in pursuing litigation proceedings against the erring service providers and suppliers. The Consumer Protection Act 1986 was enacted by the government for the welfare of the consumers who are considered the weaker section in the market dominated by the sellers and service providers. The most essential characteristic of the Act is that it aims to provide speedier and inexpensive redressal to the consumers. However, it is in the hands of the judiciary, the lawyers and the consumers to effectively use the machinery provided by the Act.
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