This article is written by Magaonkar Revati, a student of B.A. LL.B. (Hons.). This article deals with the remedies available for deficiency in service.
Table of Contents
Consumer and service or goods providers have a very frequent relation in their day-to-day life. Both are dependent on each other. So both of them should be very honest and fair in their transactions. In today’s world, we can see so many circumstances where a consumer has a problem with the service provided to them, sometimes service providers lack fairness in the quality or maybe the quantity of the services being provided to the consumers. It eventually affects their relation due to damages or loss that occurred to a consumer or customer because of the goods or services rendered to him/her.
Consumer Protection Act, 2019 (hereafter ‘the Act’) is formed for the redressal of disputes which arise out of the transaction between the consumer and goods or services provider. Consumers can appear before the consumer tribunal under this Act for getting justice.
If consumers found any service inadequate then they can make a complaint under the Act. For this, the most important required aspect is a deficiency in service, and such must entail deficiency as per the requirements provided under the Act.
Concept of deficiency
Before explaining the concept of deficiency the meaning of service has to be clear. So what is mean by service is given as below:
So it is a service of any kind which is provided to the potential users but not limited to it only it includes provisions of facilities in relation with the banking, insurance, financing, transport, processing, electrical or energy supply, board or lodging services, entertainment, administering of news and any other information. But service doesn’t include any service which has been given free of charge or under a personal service contract.
In the contract of personal service, a person can order the service provider for any specific performance. For example, the master or service provider will tell the servant only what he wants to be done. For instance, when we give an order to a carpenter for making a cupboard we only tell him the order and not the procedure for it.
Deficiency of Service
The meaning of the term deficient service is provided under the Act, it includes a list of 11 sectors to which service may pertain to come under the scope of the Act. Hence this list of the sectors is not thorough.
According to Section 2(11) of the Act, “any sort of imperfection, or defect in the feature, quality, amount worth, authenticity, it’s capacity or potential, and standard which is obligatory to be maintained and regulated as per the laws and statutes in the function or any agreement/contract claimed by the seller, concerning the products and goods, is known as a deficiency.”
A service to be deficient has to fall under the following criteria
- That service should be made available and accessible to the potential buyers, which means that service has to be provided not only to the actual buyer but also to those who are capable of using it.
- The service should not be free of charge, such as any medical services provided by government hospitals is not a service according to the Consumer Protection Act.
- Wilful and deliberate concealment of important information, commission, or negligence of acts by the seller may lead to any injury or loss to the customers/consumers.
- Any of such acts which a prudent and prompt seller is supposed not to do, but he deliberately does its opposite, such acts also include deficiency.
- It should not be under the personal service contract.
So basically deficiency is a fault, shortcomings of imperfections or inadequate quality, nature and method of the performance which are like essential conditions that have to be maintained under or by any law for time being in force or which has been undertaken by any person for performing the service under a contract or else about any service. The deficiency should be about the service. So the term ‘deficiency in service’ in the definition significantly says that the deficiency is always in the form of service.
Hence, if any service has been found deficient under the above-mentioned criteria then it will be awarded compensation under the Act. So any action and service not falling under this definition and the criteria provided under the Act will not be considered as deficient service.
There may be also some unavoidable circumstances that are beyond the limit of control of the person who is performing the service. If such circumstances stop a person from delivering or completing service of the desired and required quality, nature, and manner such persons will not be compensated or penalized under the Act.
The circumstances like where X agreed to provide internet connection facility to Y but due to curfew he unavoidably prevailed from delivering the service. Hence, in such cases, the person will not be liable for the deficient service.
Who can be sued for deficiency in service
The liability of the product relies upon the manufacturers, distributors, suppliers, and retailers for injuries caused by the products or services. Regardless of any contractual obligations and limitations of the liability, if a product or any of its components are or defect the manufacturer of the product will directly be liable for damages under the Act or the common law of negligence. The action can be brought for death, injury or any damages caused to private property under the Act due to defect of the product. Here no other type of actions can be used for compensating the purely economic or consequential loss.
The Act imposes strict liability on the manufacturer for causing harm by its defective products. So this means that the consumers can file suit against the manufacturer without proving that the manufacturer was negligent. The mere necessity is to prove the defect in the product and the damage or injury was caused by the product or service only.
When a service or goods have been found deficient, the consumer can file a suit against the alleged party by whom the rendering and delivery of deficient service have been done. A consumer or a group of consumers with the same allegation or having the same respondent can make a complaint about ascertaining the same type of injuries or damages after the consumption of the goods or services, thus the suit can be filed against the person or entity which has provided deficient services to an individual or a group of persons. According to the pecuniary value of the case, the complaint has to be filed in the district forum, state forum, or national commission. The pecuniary importance means the damages retained to the consumer of the specific service or good.
Liability of proving Deficiency
The burden of proving deficiency in service lies on the shoulders of the person who attributes it. The complainant has to prove that he has not involved any wilful facts and fault, shortcomings or inadequacy in service, imperfection against the respondent.
The deficiency in service has to be distinguished from the tortious act of the respondent. Except for the deficiency in service, the aggrieved person also has a remedy under the common law for filing a suit for damages but he cannot insist on granting relief under the said Act for the acts alleged of commission and omission that is accountable on the respondent and which does not amount for deficiency of service.
But in case if the act of respondent is found to be in good faith then he will not be entitled to the relief for deficiency in service under the Act. The delivery of deficient service should be considered and decided in each case according to the facts and circumstances of the case for which no hard and fast rule cannot be laid down.
Unfair trade practice
Trade practice is always praised and touted as unfair to promote its sale of goods and services, its supply and distribution chain of products. In unfair trade practices a seller, distributor manufacturer entity uses illegal and illicit means to promote their products and services touted by it. Showing such components, ingredients which are not being used in the products, misleading the customers by representing the goods to be of good quality even if those are of inferior quality, misleading by faulty ingredients and components. There are so many instances of unfair trade practices like selling of old and used products as brand new, misrepresenting services, sale of goods that don’t fit in the safety measures, etc.
Consumer Protection Rules, 2020 (E-commerce)
As per the new Consumer Protection Act, 2019 rules for e-commerce have been laid down under the Consumer Protection Rules, 2020. E-commerce has touched the sky these days and it’s one of the biggest platforms of trade growing up and developing day by day. The new rules provided under the rules enacted in 2020 are as follows:
- These rules cover all e-commerce portals, the marketplace, and other entities, inventories also include foreign entities situated outside India but provides goods and services to Indian customers. Those activities that are done personally and unprofessionally are exempted from the application of these rules.
- E-commerce entities are required to give information such as exchange rules, refund policy, payment options, warranty, tracking and shipment details, etc. are mandatory in this rule. However, if the products are not up to the quality mark then sellers have to refund or replace them.
- Such platforms as mentioned above have to be compulsory available for consumer complaints redressal within 48 hours and should provide proper redressal within 1 month from the date of receipt. Here the appointment of a grievance officer is a must and mandatory.
Consumer complaint redressal
The consumer can approach the Consumer Courts established under the Act when any deficiency in service or product has been found. After the enactment of the new Act of 2019, now the customers can make a complaint through an online/electronic mode. It just had made it easier and faster to register a complaint without even visiting or approaching the Consumer Court. It has not only become a comfortable way for consumers but it has also given the District and State Consumer Forum a chance to review the applications and in some cases, if the matter is feasible they can also advise mediation.
There are three-tier consumer courts in India, such as National level, State level, and District level. As per the valuation of the matters complaints of the consumers are divided into these three different consumer forums for providing redressal and adjudication for disputes. After recognizing the matter in dispute, the next step is to understand the pecuniary jurisdiction of the case.
The pecuniary jurisdiction of the consumer cases is as follows:
- District Consumer Disputes Redressal Forum: 1 Crore Rupees or less.
- State Consumer Disputes Redressal: Between 1 Crore to 10 Crore Rupees.
- National Consumer Disputes Redressal Commission: Cases having a monetary value of more than 10 Crore Rupees.
Who can file a complaint under Consumer Protection Act
The consumers can file a complaint in case of grievances. The complaint can be filed according to the procedure established under the Consumer Protection Act, 2019.
Section 2 of the Act defines a complaint as “Any written allegation made by a consumer to obtain relief under the Consumer Protection Act. In the cases of unfair trade practice, restrictive trade practice, unfair contract, defective goods, deficiency of services or goods or hazardous and dangerous goods and services.”
A complaint may also include a written allegation for claiming liability against the manufacturer, the seller, the product, or the service provider. So here a consumer complaint can be filed by one consumer or more than one consumer, any registered voluntary consumer association, the central or at ate government, heirs, or the legal representatives of the consumer. When a consumer is a minor then his/her parents or the guardian can file the complaint on behalf of the minor.
Therefore, a consumer has the right to get relief against any deficient service or goods provided by the seller or service provider. The Consumer Protection Act, 2019 grants a remedy to the consumers by providing them grievances and relief in terms of compensation from the alleged as per the procedure established under the Act. Hence, under the Act, producers can also be liable for defective products. Producer means the manufacturer of the finished products or any other person who is liable for any industrial or any other process to which any essential part of the product is accountable and included till the product is sold out or the service is rendered.
There can be more than one person liable under the Act for the same damage. So when liability is joint and several the alleged party can sue all those people.
- http://www.legalserviceindia.com/legal/article-1966-deficiency-in-service-essential-elements.html#:~:text=Deficiency%20means%20any%20fault%2C%20imperfection, in%20relation%20to%20any%20service
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