This article has been written by Mudit Gupta, currently pursuing BBA.LL.B (hons.) from the University of Mumbai Law Academy. This article discusses all the necessary details of the right to seek redressal and other relevant concepts.
This article has been published by Sneha Mahawar.
From the beginning of the evolution of human beings, we have all been dependent on each other for our survival. A single person is unable to do all the tasks, and because of this very reason, the barter system came into existence. In this system, people used to share items for items according to the needs of both parties. But over time, this system lacked efficiency because, in many cases, one of the parties refused to share their item with the other person because of the lack of utility. This problem was sorted out by the use of currency. But after some time, some new disputes started to arise. One of these disputes is on the matter of rights of a consumer to seek redressal against unfair trade practices by a seller.
Earlier the concept of caveat emptor was prevalent, which basically means “let the buyer be aware” this led to the sellers being a powerful party in a transaction, and their terms and policies used to hold the utmost value, and the buyers were forced to either agree with those terms or try their luck with some other seller.
With the evolution in time and the awareness levels of the matter of handling consumers and their behaviour as well, the concept of caveat venditor has become prevalent over the earlier concept, which basically means, “let the seller beware” and provides the consumer with the right to seek redressal and further damages for the infringement of their consumer rights.
All the provisions regarding the disputes, rights, duties, authority, redressal mechanism, etc. are provided in the Consumer Protection Act, 2019 which came into existence after repealing the Consumer Protection Act, 1986. In this article, all the details regarding the consumer’s right to seek redressal have been discussed in detail.
What are unfair trade practices
Unfair trade practices basically mean any type of activity or business practice that is deceptive in nature and causes harm to consumers. False and misleading advertisements, black marketing, hoarding, fraudulent use of trademarks or any other type of intellectual property, publishing of misleading or false advertisements, etc are some of the few acts that come under its ambit.
What is a redressal
As per the root word, it basically holds the meaning to correct something which has gone wrong in the past, and the surviving party has to be provided with some compensation in some form which nullifies the effect of that wrong up to a certain extent.
As per the Consumer Protection Act, the consumers in the country have been provided with some rights and duties. If a consumer fulfils all his duties and any type of damage has been borne by him due to any sort of unfair trade practices, then in that case he holds a right to seek damages for the damage that happened and can ask for other types of remedy also.
For example, in the famous case of Donoghue v. Stevenson, also known as the ginger beer case, the Court gave the order in favour of the plaintiff as his right as a consumer who bought a ginger beer was violated by the manufacturer as a beer with a snail was sold to the customer, creating a liability on the part of the manufacturer, and hence damages were provided to the consumer as redressal for the damage so caused.
Who can file a complaint
As per the Consumer Protection Act, 1986 only a consumer could file a complaint for any case of infringement of rights but with the commencement of the new Act of 2019, a consumer himself or a group of consumers or any recognised Consumer Association or the Central Government, the Central Consumer Protection Authority or the State Government by taking a suo-moto cognizance, can file a complaint in a consumer court.
The limitation period for filing a complaint
As per Section 69 of the Consumer Protection Act, 2019, a complaint can be filed at the District Commission, the State Commission, or the National Commission, within 2 years from the date on which the cause of action has arisen. In exceptional cases, the decisions regarding this provision can also be taken by the commission if it is convinced by the reasons for delay in the filing.
Who is a consumer
As per the provisions given under Section 2(7) of the Consumer Protection Act, 2019, a consumer is defined as a person who-
- “Buys any goods 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 user of such goods other than the person who buys such goods for consideration, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.”
- “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 service other than the person who hires or avails of the services for consideration, when such services are availed of with the approval of the first-mentioned person, but does not include a person who avails of such service for any commercial purpose.”
All those people who fall under the ambit of this definition, as provided in the statute, are considered consumers.
What are the rights given to a consumer
As per the provisions of the Consumer Protection Act, 2019, a consumer has been provided with the following six rights–
- The right to be protected against the marketing of goods, services that are hazardous to life and property
This right means that a consumer has the right to not be marketed for a hazardous product with no useful utility.
- The right to be informed about the specifications of goods, products or services, as the case may be
This right provides protection to the consumer against unfair trade practices such as use of false weights etc.
- The right to be assured
This right provides the consumer the power to choose wisely and, wherever possible, be provided with access to a variety of goods, products, or services at competitive prices so as to ensure consumer welfare.
- The right to be heard
This right provides the consumers an assurity to be heard in case of any infringement of their rights and to that consumer’s interests will receive due consideration at appropriate fora.
- The right to consumer education
This right basically provides consumers the liberty to gain knowledge and skills about their rights and duties as given under the statute, to be an informed consumer.
- The right to seek redress
This right provides consumers with the power to move to the commissions against unfair trade practices, restrictive trade practices, or unscrupulous exploitation used against them.
In the Consumer Protection Act, 2019, the Central Protection Councils are recognised as advisory bodies to protect and promote consumer rights, which are established at district, state and central levels in the country.
Central Consumer Protection Authority (CCPA)
The Consumer Protection Act, 2019 provides the power to the central government to set up a Central Consumer Protection Authority (CCPA) to promote, protect, and enforce the rights of consumers. It regulates matters related to violations of consumer rights, unfair trade practices, and misleading advertisements.
The Central Consumer Protection Authority also has an investigation wing, headed by a Director-General, which may conduct inquiry or investigation into such violations.
Functions of Central Consumer Protection Authority
- Inquiring into violations of consumer rights.
- Launching prosecution at the required forum.
- Recalling the goods or withdrawing the services that are hazardous in nature.
- Issuing directions to the concerned person in cases of misleading or false advertisements.
- Issuing safety notices to consumers against unsafe goods and services.
What is a product
As per the Consumer Protection Act, 2019, goods as well as services provided in relation to the goods supplied, unless specifically excluded by the Central Government by way of a notification are included under the ambit of word ‘product’. Also, human tissues, blood, blood products, organs and services rendered free of charge or under a contract of personal service are excluded from the ambit of the word ‘product’.
Who will be liable for the damages
Now, when it is clear that the consumer has suffered some damage and is seeking redressal for the same, the second question that arises is who will be liable for the damages so demanded by the consumer in the case of a defective product. The answer to this question is answered in detail in Chapter-VI of the Consumer Protection Act, 2019. This chapter was not specifically mentioned in the Consumer Protection Act, 1986, but after understanding the necessity of the time, it was included in the newly drafted Act. In this chapter, all the provisions regarding the concept of product liability are discussed.
As per the provisions given under this chapter, a complainant may bring an action against the product manufacturer, product service provider, or product seller as per the circumstances and facts of the case filed. Furthermore, the distinction between the specific situations in which either the product manufacturer, product service provider, or the seller are held liable and are asked to provide damages to the consumer remains. Let’s discuss these situations-
A product manufacturer is liable in either of the following cases-
- where the product contains a manufacturing defect
- where the product is defective in design
- where there is a deviation from manufacturing specifications
- where the product does not conform to the express warranty
- where the product fails to contain adequate instructions of correct usage to prevent any harm or any warning regarding improper or incorrect usage
The definition of product manufacturer under the Consumer Protection Act, 2019 does not distinguish between domestic and foreign manufacturers. A product manufacturer can also be held liable even if he proves that he was not negligent in making the express warranty of a product because he is the only person responsible for the manufacturing and any necessary action can only be taken care of by him. If there are many parties involved in the manufacturing of the product having their inputs at different stages of building it then the commission first tries to identify the party responsible and if a single party is not found in the investigation, then all the parties involved in manufacturing the product are jointly or severally held liable for the liability so occurred.
Product Service Provider
A product service provider is liable in either of the following cases-
- when the service provided by the service provider renders to be faulty or imperfect or deficient or inadequate in quality, nature or manner of performance which is required to be provided by or under any law for the time being in force, or under any contract or otherwise.
- where there was an act of omission or commission or negligence or conscious withholding of any information which caused harm
- where the service provider did not issue adequate instructions or warnings to prevent any harm
- where the service did not conform to the express warranty or the terms and conditions of the contract.
In cases where the service is faulty, deficient, imperfect, inadequate in quality, nature or manner of performance which is required to be done or if there was an act of omission or commission or negligence or conscious withholding of any information which caused harm or want of adequate instructions or warnings to prevent harm or when service is not provided as per express warranty or terms and conditions, then a complaint can be filed against the service provider because all these acts are necessary duties of the service provider and no one except him can be held liable for these cases.
A seller is liable in either of the following cases of product liability-
- where he has exercised substantial control over the designing, testing, manufacturing, packaging, or labelling of a product that caused harm
- In case where he has altered or modified the product and such alteration or modification was the substantial factor in causing the harm
- when he has made an express warranty of a product independent of any express warranty made by a manufacturer and such product failed to conform to the express warranty made by the product seller which caused the harm
- where the product has been sold by him and the identity of product manufacturer of such product is not known, or if known, the service of notice or process or warrant cannot be effected on him or he is not subject to the law which is in force in India or the order, if any, passed or to be passed cannot be enforced against him.
He is to be liable in each of the above-mentioned cases because he is the last person to have control over these acts and also holds a duty to take necessary actions to prevent any sort of mishap occurring due to the act or omission on the part of the seller.
Exceptions provided against product liability
Now, as there are two parties involved in any dispute and at the start of the hearing, both of the parties have their own facts and opinions to say. So if there arises a liability on the part of the manufacturer, service provider or seller then the above discussed provisions are used to provide damages to the consumer, but what if the case is vice-versa?
If a consumer is misusing his rights then the justice delivery system is hindered. To counter this, certain exceptions are also provided in the statute so that no party uses their rights fraudulently against the others. These exceptions are discussed in Section 87 of the Consumer Protection Act, 2019 and the exceptions are as given under-
- A product liability action cannot be brought in cases where the product or service delivered is misused, altered or modified by the consumer and no liability occurs on the part of the manufacturer, service provider or seller.
- It can also not be brought in cases where the information or guidelines were given to the purchaser and he further did not fulfil his duty to inform the user about the said guidelines.
- If the product was to be used under the guidance of an expert and the consumer didn’t do so and used it without taking such precautions.
- If the complainant, while using such a product, was under the influence of alcohol or any prescription drug which had not been prescribed by a medical practitioner.
- If the complainant has asked for damages after two or more years as per the time limit provided in the Act. Although, the court might consider the complaint in some extraordinary circumstances if it is proved that the complainant could not do it because of some unavoidable reasons.
In all these circumstances, the liability will not occur on the part of either manufacturer, service provider, or seller because any damage caused under these circumstances would have taken place only because of the negligence or omission of the consumer and not because of any act or omission of the opposite parties in the dispute.
Liability in patent infringement matters
Talking about patent infringement matters, the only practical relief available to a Standard-Essential Patent holder is by way of anti-infringement action. The right to seek legal redressal, against infringement, is a fundamental right. An order which results in depriving the patent holder of this fundamental right is ex-facie oppressive in nature. Protection of the jurisdiction of the Court is also a guiding factor in these matters.
In the cases of Modi Entertainment Network v. W.S.G. Cricket Pte Ltd, Dinesh Singh Thakur v. Sonal Thakur and O.N.G.C. v. Western Co. of North America, it was pronounced that anti-suit injunctions are ordinarily to be granted in cases where the foreign proceedings are ‘oppressive or vexatious’, or where a declining injunction would result in defeating justice and perpetuating injustice.
Delhi High Court, in one of its judgments, said that anti-suit injunctions are to be provided in rare cases only and should not be used as a common practice.
Procedure to file a complaint
Now that we have discussed mostly all the other provisions, let’s talk about the procedure provided to file a complaint.
Consumer Protection Act, 1986 only provided for a dispute settlement through an offline filing and trial at the consumer court having jurisdiction, but the new Act provides for online application as well as an alternate way for the purpose of dispute resolution. As per the provisions of the Consumer Protection Act, 2019 the procedure to file a complaint is explained in the following steps-
Issuance of notice
Before the filing of the complaint, a notice has to be sent to the opposite party talking about the defects and deficiencies. If parties don’t agree to come to a common ground, then the complainant can file a complaint.
Determination of jurisdiction
Now, if the parties have not agreed then the complaint has to be filed in the commission as per the pecuniary and territorial jurisdiction provided as per the statutes in the country.
- In this step, a complaint regarding the dispute is filed by the complainant through an online mode, established for this purpose, by filling in essential details like name, email, contact number, etc. and by paying the fees for the same. The court fees have to be paid in the form of a Demand Draft, in respect of the Registrar of respective Commissions. In respect of the National Commission, the appellant has to make a demand draft of Rs. 7,500.
- After the registration, the complainant is provided with a unique identification number through which he can determine the status of the complaint. Although, as per the latest Consumer Dispute Redressal Commission Rules, it has been very clearly notified that there shall be no fee for the filing of cases under the Consumer Protection Act, 2019 up to Rs. 5 Lakhs.
- As per the provisions of the Consumer Protection Act, 2019, a dispute can be handled in two ways. Either by normal court proceedings or by an Alternative Dispute Redressal Mechanism, according to which ‘Mediation Cells’ are attached to every District, State, and Nation Commission. If the parties decide to go for mediation and submit a written application for the same to the court, and after seeing the matter, if the court believes that it can be resolved by mediation, the case is transferred to a Mediation Cell. Although it can be taken back by the commission itself, if the matter is not solved by way of mediation.
- All expenses related to the process of mediation including the fee of the mediator, costs of administrative assistance, and other such expenses, shall be taken care of by the respective States or Union territories. The fee of the mediator shall not exceed Rs. 2000/- per case under any circumstances. But any expense incurred in relation to the production of witnesses will have to be borne by the parties themselves. Also, all expenses regarding the production of documents and experts will have to be borne by the parties themselves.
- What is pecuniary jurisdiction?
As per the provisions of the Consumer Protection Act, 2019, there are three classifications provided for pecuniary jurisdiction-
- District Commission: Amount not exceeding 1 crore Rupees
- State Commission: Amount between 1 Crore to 10 Crore Rupees
- National Commission: Amount exceeding Rupees 10 Crore.
- What are the other types of relief provided?
There are some other types of relief that can be provided as per the provisions of the Act-
- Removal of defects from the goods
- Replacement of defective goods
- Refund of the price of goods
- Withdrawal of the goods from the market
- Can the marketplace be held liable for product liability claims?
There is no liability provided under the capacity of the marketplace, but can be held liable if some other form of involvement such as that of the manufacturer is found.
- Can a product retailer or a delivery service be held liable for product liability?
Yes, they can be held liable.
- Is there any provision of insurance to cover any liability on account of product liability?
In today’s insurance market, product liability insurance is also available in India and can be used as an option to cover product liability claims as per the provisions under Consumer Protection Act, 2019. Many insurance providers such as The New India Assurance Co. Ltd, HDFC ERGO, Bharti AXA General Insurance, Bajaj Alliance etc provide insurance schemes to cover the product liability claims.
- What if a consumer is not satisfied by the order of the consumer commission?
If the consumer is not satisfied with the order of the consumer commission then he can further appeal to the higher commission within 30 days from the date of order and further in the Supreme Court of India within 45 days.
- Does the consumer need an advocate to represent his case in the Commission?
No. A consumer can himself or through his representative file and represent his complaint before the commission.
- Is there any change in the amount to be deposited for filing an appeal?
In the case of appeals, 50% of the total award amount passed by the lower court has to be deposited.
- Can an appeal be filed after settlement through mediation?
No, an appeal cannot be filed before any commission after the settlement of the dispute through mediation.
- Can settlement through mediation be opted at any stage of the dispute settlement?
Yes, the parties can opt for mediation at any stage of the dispute settlement by submitting an application before the commission.
The consumer’s behaviour, as well as the market, has changed over the years. With the increased awareness about our rights and duties as a consumer, the market has changed its behaviour too. Now, to ensure effective utilisation of rights given to us by the statutes of the country, it is our right as well as duty to take a stand against the evil practices prevalent in the market by seeking justice for any sort of infringement of our rights as a consumer and support other consumers with the same. Help some consumers in need by imparting to them the information regarding the same and by asking others to do so as well. I am doing my part, hoping that you will do yours too.
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