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INTRODUCTION
The industrial revolution
and the development in the international trade and commerce has led
to the vast expansion of business and trade, as a result of which a
variety of consumer goods have appeared in the market to cater to the
needs of the consumers and a host of services have been made available
to the consumers like insurance, transport, electricity, housing, entertainment,
finance and banking. A well organised sector of manufactures and traders
with better knowledge of markets has come into existence, thereby affecting
the relationship between the traders and the consumers making the principle
of consumer sovereignty almost inapplicable. The advertisements of goods
and services in television, newspapers and magazines influence the demand
for the same by the consumers though there may be manufacturing defects
or imperfections or short comings in the quality, quantity and the purity
of the goods or there may be deficiency in the services rendered. In
addition, the production of the same item by many firms has led the
consumers, who have little time to make a selection, to think before
they can purchase the best. For the welfare of the public, the glut
of adulterated and sub-standard articles in the market have to be checked.
Inspite of various provisions providing protection to the consumer and
providing for stringent action against adulterated and sub-standard
articles in the different enactments like Code of Civil Procedure, 1908,
the Indian Contract Act,1872, the sale of goods Act,1930, the Indian
Penal Code, 1860,the Standards of Weights and Measures Act,1976 and
the Motor Vehicles Act,1988, very little could be achieved in the field
of Consumers Protection. Though the Monopolies and Restrictive Trade
Practices Act,1969 and the Prevention of Food Adulteration Act, 1954
have provided relief to the consumers yet it became necessary to protect
the consumers from the exploitation and to save them from adulteration
and sub-standard goods and services and to safe guard the interests
of the consumers. In order to provide for better protection of the interests
of the consumer the Consumer Protection Bill,1986 was introduced in
the Lok Sabha on 5th December,1986.
STATEMENT OF OBJECTS AND REASONS
1.The Consumer Protection Bill, 1986 seeks to provide for better
protection of the interests of consumers and for the purpose, to make
provision for the establishment of Consumer councils and other authorities
for the settlement of consumer disputes and for matter connected therewith.
2. It seeks, inter alias, to promote and protect the rights of consumers
such as-
(a) the right to be protected against marketing of goods which are hazardous
to life and property;
(b) the right to be informed about the quality, quantity, potency, purity,
standard and price of goods to protect the consumer against unfair trade
practices;
(c) the right to be assured, wherever possible, access to an authority
of goods at competitive prices;
(d) the right to be heard and to be assured that consumers interests
will receive due consideration at appropriate forums;
(e) the right to seek redressal against unfair trade practices or unscrupulous
exploitation of consumers: and
(f) right to consumer education.
3. These objects are sought to be promotes and protected by
the Consumer Protection Council to be established at the Central and
State level.
4. To provide speedy and simple redressal to consumer disputes,
a quasi-judicial machinery is sought to be set up at the district, State
and Central level. These quasi-judicial bodies will observe the principles
of natural justice and have been empowered to give relief of a specific
nature and to award, wherever appropriate, compensation to consumers.
Penalties for non-compliance of the orders given by the quasi-judicial
bodies have also been provided.
5. The Bill seeks to achieve the above objects.
ACT 68 OF 1986
The Consumer Protection Bill, 1986 was passed
by both the Houses of Parliament and it received the assent of the President
on 24th December,1986. It came on the Statutes Book as the Consumer
Protection Act, 1986 (68 of 1986).
LIST OF AMENDING ACTS
1. The Consumer Protection (Amendment) Act, 1991 (34 of 1991).
2. The Consumer Protection (Amendment) Act, 1993 (50 of 1993).
THE CONSUMER PROTECTION ACT,1986
(68 of 1986)
An Act to provide for better protection of the interests of consumers
and for that purpose to make provision for the establishment of consumer
councils and other authorities for the settlement of consumer' disputes
and for matters connected therewith.
Be it enacted by Parliament in the Thirty-seventh Year of the Republic
of India as Follows:-
PRELIMINARY
1.Short title, extent, commencement and application.-
(1) This Act may be called the Consumer Protection Act,1986.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government
by notification, appoint and different dates may be appointed for different
States and for different provisions of this Act.
(4) Save as otherwise expressly provided by the Central Government by
notification, this Act shall apply to all goods and services.
2.Definitions.-
(1) In this Act, unless the context otherwise requires,-
(a) "appropriate laboratory" means a laboratory
or organisation-
(i) recognised by the Central Government;
(ii) recognised by State Government, subject to
such guidelines as may be prescribed by the Central Government
in this behalf; or
(iii) any
such laboratory or organisation established by or under any law for
the time being in force, which is maintained, financed or aided by the
Central Government or a State Government for carrying out analysis or
test of any goods with a view to determining whether such goods suffer
from any;]
(aa) "branch office" means-
(i) any establishment described as a branch by the
opposite party; or
(ii) any
establishment carrying on either the same or substantially the same
activity as that carried on by the head office of the establishment;]
(b) "complainant" means-
(i) a consumer; or
(ii) any voluntary consumer association registered under
the companies Act,1986(1 of 1956) or under any other law for the time
being in force; or
(iii) the Central Government or any State Government;
[(iv) one or more consumers, where there are numerous
consumers having
the same interest;]
who or which makes a complaint;
(c) "complaint" means any allegation in writing made by a complainant
that-
(i) an unfair trade practice or a restrictive trade practice
has been adopted by any trader;
(ii) [the goods bought by him or agreed to be bought by
him] suffer from one or more defects;
(iii) [the service hired or availed of a agreed to be hired
or availed of by him] suffer from deficiency in any respect;
(iv) a trader has charged for the goods mentioned in the
complaint a price in excess of the price fixed by or under any law for
the time being in force or displayed on the goods or any package containing
such goods;
(v) goods which will be hazardous to life and safety when
used, are being offered for sale to the public in contravention of the
provisions of any law for the time being in force requiring traders
to display information in regard to the contents, manner and effect
of use of such goods,
with a view to obtaining any relief provided by or under this Act,
(d) "consumer' means any person who-
(i) 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 then the person who
buys such goods for consideration paid or promised or partly paid or
partly promised, or under any person, but does not include a person
who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services 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
then 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;
Explanation.-For
the purpose of sub-clause (i), "commercial purpose"
does not include
use by a consumer of goods bought and used by him exclusively
for the purpose of earning his livelihood, by means of self-employment
(e) "consumer dispute" means a dispute where the person against
whom a complaint has been made, denies or disputes
the allegation contained in the complaint;
(f) "defect" means any fault, imperfection or shortcoming
in the quality, quantity, potency, purity or standard which is required
to be maintained by or under any law for the time
being in force or [under any contract, express
or implied or] as is claimed by the trader in any manner whatsoever
in relation to any goods;
(g) "deficiency" means any fault, imperfection, shortcoming
or inadequacy in the quality, nature and manner or 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;
(h) "District Forum" means a Consumer Disputes
Redressal Forum established under clause (a) of
section 9;
(i) "goods" means goods as defined in the sale of Goods Act,1930;
(j) "manufacture" means a person who-
(i) Makes or manufacture any goods or parts thereof; or
(ii) does not make or manufacture any goods but assembles parts
thereof made or manufactured by others and claims
the end-product to be goods manufactured by himself;
or
(iii) puts or causes to be put his own
mark on any goods made or manufactured by any
other manufacturer and claims such goods to be goods made
or manufactured by himself.
Explanation.- Where a manufacturer dispatches any goods or
part thereof to any branch office maintained by
him, such branch office shall not be deemed to
be the manufacturer even though the parts so dispatched to it
are assembled at such branch office and are sold or distributed
from such branch office;
(j) "member" includes the President and a member
of the National Commission or a State Commission
or a District Forum, as the case may be;
(k) "National Commission" means the National Consumer Disputes
Redressal Commission established under clause
(c) of section9;
(l) "notification" means a notification published in the Official
Gazette;
(m) "person" includes,-
(i) a firm whether registered or not;
(ii) a Hindu undivided family;
(iii) a co-operative society;
(iv) every other association of persons
whether registered under the societies Registration
Act, 1860 (21 of 1860) or not;
(n) "prescribed" means prescribed by rules made by the State
Government, or as the case may be, by the Central
Government, under this Act;
(nn) "restrictive trade practice" means any trade practice
which requires a consumer to buy, hire or avail
of any goods or, as the case may be, services
as a condition precedent for buying, hiring or availing of other
goods or services;
(o) "service" means service of any description which is made
available to potential users and includes 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;
(p) "State Commission" means a Consumer Dispute
Redressal Commission established in a state under
clause (b) of section 9;
(q) "trader" in relation to any goods means
a person who sells or distributes any goods for
sale and includes the manufacturer thereof, and where
such goods are soled or distributed in package from, includes the
packer thereof;
(r) "unfair trade practice" means a trade practice which,
for the purpose of promoting the sale, use or
supply of any goods or for the provision of any
service, adopts any unfair method or unfair or deceptive practice
including any of the following practices, namely;-
(1) the practice of making any statement, whether orally
or in writing or by visible representation which;-
(i) falsely represents that the goods are
of a particular standard, quality, quantity, grade, composition, style
or model;
(ii) falsely represents that the services
are of a particular standard, quality or grade;
(iii) falsely represents any re-built,
second-hand, renovated, recondition or old goods as new goods;
(iv) represents that the goods or services
have sponsorship, approval, performance, characteristics,
accessories, uses or benefits which such goods
or services do not have;
(v) represents that the seller or the supplier
has a sponsorship or approval or affiliation which
such seller or supplier does not have;
(vi) makes a false
or misleading representation concerning the need for, or
the usefulness of, any goods or services;
(vii) gives to the public any warranty or guarantee of the performance,
efficacy or length of life of a product or of any goods
that is not based on an adequate or proper test
thereof: Provided that where a defense is raised
to the effect that such warranty or guarantee
is based on adequate or proper test, the burden of proof of such
defense shall lie on the person raising such defense;
(viii) Makes to the public a representation in a form that purports
to be-
(i) a warranty or guarantee of a product
or of any goods or services; or
(ii) a promise to replace, maintain or
repair an article or any part thereof or to repeat
or continue a service until it has achieved a specified
result, if such purported warranty or guarantee or promise is materially
misleading or if there is no reasonable prospect that
such warranty, guarantee or promise will be carried
out;
(ix) materially misleads the public concerning
the price at which a product or like products
or goods or services, have been or are, ordinarily
sold or provided, and, for this purpose, a representation as
to price shall be deemed to refer to the price at which
the product or goods or services has or have been
sold by sellers or provided by suppliers generally
in the relevant market unless it is clearly specified to
be the price at which the product has been sold or services have been
provided by the person by whom or on whose behalf the
representation is made;
(x) gives false or misleading facts disparaging
the goods, services or trade
of another person.
Explanation:- For the purposes of clause (1), a statement
that is-
(a) expressed on an article offered or displayed for sale, or
on its wrapper or container; or
(b) expressed on
anything attached to, inserted in, or accompanying, an article
offered or displayed for sale, or on anything on which the article
is mounted for display or sale; or
(c) contained in or on anything that is sold, sent, delivered,
transmitted or in any other manner whatsoever made available
to a member of the public, shall
be deemed to be a statement made to the public by, and only by, the
person who had caused the statement to be so expressed,
made or contained;
(2) permits the publication of any advertisement whether in
any newspaper or otherwise, for the sale or supply
at a bargain price, of goods or services that
are not intended to be offered for sale or supply at the bargain
price, or for a period that is, and in qualities that are, reasonable,
having regard to the nature of the market in which the business
is carried on, the nature and size of business, and the nature
of the advertisement.
Explanation:-
For the purpose of clause (2), "bargaining price" means-
(a) a price that is stated in any advertisement to be a
bargain price, by reference to an ordinary price
or otherwise, or
(b) a price that a person who reads, hears or sees the advertisement,
would reasonably understand to be a bargain price having
regard to the prices at which the product advertised
or like products are ordinarily sold;
(3)
permits-
(a) the offering of gifts, prizes or other items with the intention
of not
providing them as offered or creating impression that something is
being given or offered free of charge when it is fully
or partly covered by the amount charged in the
transaction as a whole;
(b) the conduct
of any contest, lottery, game of chance or skill, for the purpose
of promoting, directly or indirectly, the sale, use or supply of
any product or any business interest;
(4) permits the sale or supply of goods intended to be
used, or are of a kind likely to be used, by consumers,
knowing or having reason to believe that the goods
do not comply with the standards prescribed by competent authority
relating to performance, composition, contents, design, constructions,
finishing or packaging as are necessary to prevent or reduce
the risk of injury to the person using the goods;
(5) permits the hoarding or destruction of goods, or refuses
to sell the goods or to make them available for
sale or to provide any service, if such hoarding
or destruction or refusal raises or tends to raise or is intended
to raise, the cost of those or other similar goods or services.
(2) Any reference in this Act to any other Act or provision thereof
which is not in force in any area to which this
Act applies shall be construed to have a reference
to the corresponding Act or provision thereof in force
in such areas.
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(i)
The student is a consumer of service of educational institute;
Sushant Yuvaraj
Roade v. Shri Ramdeobaba Engineering Collage, 1993 (III)CPR 624.
(ii) A person who receives medical treatment in a Government hospital
is not consumer
under the Act; Consumer Unity & Trust Society v State of
Rahjstan, (1991)
1 CPR 241. However, the State Commission of Orissa held
that a paptient
is a Consumer being the beneficiary of services in as much
as the State Government is paying the consideration amount in
the form
of salary to the doctors and hospital staff; Smt. Sukanti Behera
v Dr.Shashi
Bhusan Rath, II(1993) CPJ 633.
(iii) A licensee
to run a phone is not consumer; Techno combine Associates
v.Union of India,
1(1994 CPJ 481:1994 (I)CPR 298.
(iv) A lottery ticket
holder is not "consumer" within the ambit of the definition
of "consumer" under the Act; Jagdish Chand v.Director,Sikkim
State Lottery, 1994(i)
CPR 213.
(v) Applicant who merely applies for allotment of shares is not
a consumer; H.G.
Bhatia v.ABC Computers Pvt. Ltd.,1994(I) CPR 316.
(vi) The beneficial consumer jurisdiction cannot be extended to
lotteries and wagering
transactions or consequential rights flowing from void
contracts; Jadish Chand v. Director, Sikkim State Lotteries, 1994(I)
CPR 213.
(vii) If somebody does not perform his part of the contract, it
amounts to
deficiency in service; Smt. Ramala Roy v. Rabindra Nath Sen, 1994
(I) CPR 66.
(viii) The agreement for hypothecation does not create the ownership
right, and as such
no complaint can be maintained for deficiency in service;
Jayantial Keshavlal Chauhan v. The National Insurance Company
Ltd., 1994 (I) CPR
390.
(ix) Undue delay in declaration of examination result is obviously
deficiency in service;
Secretary, Board of School Education, Haryana v. Mukesh
Chand, 1994 (I) CPR 269.
(x) When there is default or negligence in regard to service that
will constitute
deficiency in service on the part of the opposition party and
it is perfectly
open to the aggrieved consumer to seek appropriate relief
under the Act; S.K.
Lakhotia v. National Insurance Co. Ltd., 1994 (I)CPR 43.
(xi) Discriminatory service or arbitrary action, is a "deficiency",
Orissa State Housing
Board v. Bishwanath Misra, II (1994) CPJ 377:1994 (I)
CPR 78.
(xii) The repudiation
of the claim by the Insurance Company on the ground that
the driver was not holding a valid driving license at the time
of the accident
could not be termed as deficiency in service or negligence
on the part of the
Insurance Company within the meaning of section 2(g) of
the Act; New India Assurance Co. Ltd. v. Smt. Pushpa Yashwant
Ghatge, 1996 NCJ
195.
(xiii) Medical services
are covered under the definition of "service"
includes rendering
of consultation, diagnosis and treatment, both medical
3.
(xiv) "Contract
of personal service" has to be distinguished from a
"contract for
personal service". In the absence of relationship of
master and servant
between the patient and the medical practitioner, the service
rendered by a medical practitioner to the patient cannot be
regarded as service
rendered under a contract of personal service. It is "contract
for personal services". Wherever, there is relationship like
that of master and
servant it is a "contract of personal service" and is
excluded from the
purview of the Act; Indian Medical Association v. V.P.
Shantha, 1995 SCALE
273. |
3.
Act not in derogation of any other law.- The
provisions of this Act shall be in addition to and not in derogation
of the provisions of any other law for the time being in force.
| COMMENTS
(i)
The remedy provided under the Act is in addition to the provisions
of any other
law for the time being in force. The provisions of this Act
give the consumer
an additional remedy besides those that may be available
under other existing laws; The Consumer & Citizens Forum v.
Karnataka Power
Corporation, 1994 (I) CPR 130.
(ii) When a case is pending in a court in which full evidence
is to be recorded
the Forums constituted under the Consumer Protection Act, 1986
should not entertain
the complaint with respect to the same cause of action;
Hanuman Prasad v. The New India Assurance Co. Ltd., I (1994)
CPJ 1(NC).
(iii) It is nowhere laid down that whenever the examination and
cross-examination
is involved, the proper forum for adjudication of the dispute
is only Civil Court; S.K. Lakhotia v. National Insurance Co.Ltd.,
1994 (I) CPR 43.
(iv) It is authoritatively settled that the arbitration clause
is not a bar
to the entertainment of the complaint by the Redressal Agency
constituted under
the Act, even if the arbitration provision has been laid
down in a statue; Ram Nath v. Improvement Trust, Bhatinda, 1994
(I)CPR 357.
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CONSUMER
PROTECTION COUNCILS
4.
The Central Consumer Protection Council.-
(1) The Central Government
may by notification, establish with effect from such
date as it may specify in such notification, a
Council to be known as the Central Consumer Protection
Council ( hereinafter referred to as the Central Council).
(2) The Central Council shall consist of the following
members, namely:-
(a) the Minister in charge of the [consumer
affairs] in the Central Government, who shall
be its Chairman, and
(b) such number of other official or non-official
members representing such interests as may be
prescribed.
5. Procedure for meetings of the Central Council.-
(1) The Central Council shall meet as and when
necessary, but [at least one meeting] of the Council
shall be held every year.
(2) The Central Council shall meet at such time and place as the Chairman
may think fit and shall observe such procedure in regard
to the transaction of its business as may be prescribed.
6. Objects of the Central Council.- The objects of the Central
Council shall be to promote and protect the rights
of the consumers such as, -
(a) the right to be protected against the marketing of goods [and
services] which are hazardous to life and property.
(b) 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.
(c) the right to be assured, wherever possible, access to a variety
of goods [and services] at competitive prices.
(d) the right to be heard and to be assured that consumer's interests
will receive due consideration at appropriate forums;
(e) the right to seek redressal against unfair trade practices [or
restrictive trade practices] or unscrupulous exploitation
of consumers; and
(f) the right to consumer education.
7. The State Consumer Protection Councils.-
(1) The State Government may, by notification,
establish with effect from such date as it may specify
in such notification, a Council to be known as the Consumer Protection
Council for .................... (hereinafter referred to as
the State Council).
(2) The State Council shall consist of the following members, namely:-
(a) the Minister incharge of consumer affairs
in the State Government who shall be its Chairman;
(b) such number of other official or non-official
members representing such interests as may be
prescribed by the State Government.
(3) The State Council shall meet as and when necessary but not less
than two meetings shall be held every year.
(4) The State Council shall meet at such time and place as the Chairman
may think fit and shall observe such procedure in regard
to the transaction of its business as may be prescribed
by the State Government.
8. Objects of the State Council.- The objects of every State
Council shall be to promote and protect within
the State the rights of the consumers
laid down in clauses (a) to (f) of section 6.
CONSUMER
DISPUTES REDRESSAL AGENCIES
9. Establishment
of Consumer Disputes Redressal Agencies.- There shall
be established
for the purposes of this Act, the following agencies, namely:-
(a) a Consumer Disputes Redressal Forum to be known as the " District
Forum" established by the State Government in each
district of the State by notification:
Provided that the State Government may, if it deems fit,
establish more then one District Forum in a district;
(b) a Consumer Dispute Redressal Commission to be known as the "State
Commission" established by the State Government
in the State by notification; and
(c) a National Consumer Disputes Redressal Commission established by
the Central
Government by notification.
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COMMENTS
(i) If
a redressal forum has no jurisdiction, it cannot entertain the
complaint on merits; Solvochen Intermediates Pvt. Ltd. v. Boilertech
Engineers Pvt. Ltd., 1992 (II) CPR 322.
(ii) When no objection was taken to the territorial jurisdiction
of District Forum by filling written version, the objection cannot
be entertained in appeal raised orally; Essen Computers Ltd. v.
Tagore Gracias,1992 (II) CPR 556.
(iii) One or more consumers can file complaint; Chief General
Manager, Calcutta Telephones v. International Packers & Movers,
I (1994) CPJ 132:1994 (I) CPR 252. |
10.
Composition of the District Forum.- Each District Forum shall
consist of,-
(a) a person who is, or has been, or is qualified to be a District
Judge, who shall be its President;
(b) two other members, who shall be persons of ability, integrity and
standing, and have adequate knowledge or experience of,
or have shown capacity in dealing with, problems
relating to economics, law, commerce, accountancy,
industry, public affairs or administration , one of whom shall
be a woman.
(1A) Every appointment under sub-section
(1) shall be made by the State Government on the
recommendation of a selection committee consisting of the
following, namely :-
(i) the President of the State Commission
-Chairman.
(ii) Secretary, Law Deptt. of the State -Member.
(iii) Secretary, incharge of the Deptt.
-Member. dealing with consumer affairs in the State
(2) Every member of the District Forum shall hold office for a term
of five years or up to the age of 65 years, whichever
is earlier, and shall not be eligible for re-appointment:
Provided that a member may resign his office in writing under his hand-addressed
to the State Government and on such resignation being accepted,
his office shall become vacant and may be filled by the appointment
of a person possessing any of the qualifications mentioned in
sub-section (1) in relation to the category of the member
who has resigned.
(3) The salary or honorarium and other allowances payable to, and the
other terms and conditions of service of the members
of the District Forum shall be such as may be
prescribed by the State Government.
11.Jurisdication of the District Forum.-
(1) Subject to the other provisions of
this Act, the District Forum shall have jurisdiction to entertain complaints
where the value of the goods or services and the compensation,
if any, claimed [does not exceed rupees five lakhs].
(2) A complaints shall be instituted in a District Forum within
the local limits of whose jurisdiction,-
(a) the opposite party or each of the opposite
parties, where there are more than one, at the
time of the institution of the complaint, actually and
voluntarily resides or [carries on business or has a branch office
or] personally works for gain, or
(b) any of the opposite parties, where there are
more than one, at the time of the institution
of the complaint, actually and voluntarily resides,
or carries on business or has a branch office], or personally
works for gain, provided that in such case either the
permission of the District Forum is given, or
the opposite parties who do not reside, or [ carry
on business or have a branch office], or personally work for gain,
as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
| COMMENTS
(i)
A petition of complaint can be filed against corporation carrying
on business
within the territory of District Forum or Commission even though
its sole or principal
office is situated outside state limits; Consumer Education
and Research Society v. Canara Bank, (1991) CPR 405.
(ii) Objections regarding territorial jurisdiction should be taken
at the earliest
opportunity or the same deemed to have been waived; Kurukshetra
University v. Vinay Prakash Verma, II (1993) CPJ 647. |
12. Manner in which complaint shall be made.- A complaint in
relation to
any goods sold or delivered or agreed to be sold or delivered or any
service provided or agreed to be provided may be filed
with a District Forum by-
(a) the consumer to whom such goods are sold or delivered or agreed
to be sold or delivered or such service provided
or agreed to be provided;
(b) any recognised consumer association whether the consumer
to whom the goods sold or delivered or agreed
to be sold or delivered or service provided or
agreed to be provided is a member of such association or not;
(c) one or more consumers, where there are numerous consumers having
the same interest, with the permission of the
District Forum, on behalf of, or for the benefit
of, all consumers so interested; or
(d) the Central or the State Government.
Explanation.- For the purpose of this section, " recognised
consumer association " means any voluntary
consumer association registered under the Companies
Act, 1956 (1 of 1956) or any other law for the time being in
force.
| COMMENTS
(i)
A municipality has been ordered to pay damages for shortage of
drinking water;
Wangdi Tshering v. Chairman, Kurseong Municipality, 1993
(2) CPR 476.
(ii) Compensation of Rs. 5 lakhs was awarded for non-delivery
of possession
of plot and wrongful cancellation; P. Parthasarthy v. The
Tamil Nadu Housing
Board, 1993 (2) CPR 445. |
13.Procedure on receipt of Complaint.-
(1) The District Forum shall, on
receipt of a complaint, if it relates to any goods,-
(a) refer a copy of the complaint to the opposite party mentioned in
the complaint directing him to give his version
of the case within a period of thirty days or
such extended period not exceeding fifteen days as may be
granted by the District Forum;
(b) where the opposite party on receipt of a complaint referred to him
under clause (a) denies or disputes the allegations contained
in the complaint, or omits or fails to take any
action to represent his case within the time given
by the District Forum, the District Forum shall proceed
to settle the consumer dispute in the manner specified in clauses (c)
to (g);
(c) where the complaint alleges a defect
in the goods which cannot be determined without
proper analysis or test of the goods, the District Forum
shall obtain a sample of the goods from the complainant, seal it
and authenticate it in the manner prescribed and refer
the sample so sealed to the appropriate laboratory
along with a direction that such laboratory make
an analysis or test, whichever may be necessary, with a view
to finding out whether such goods suffer from any defect alleged in
the complaint or from any other defect and to report
its findings thereon to the District Forum within
a period of forty-five days of the receipt of
the reference or within such extended period as may be granted by the
District Forum;
(d) before any sample of the goods is referred to any
appropriate laboratory under clause (c), the District
Forum may require the complainant to deposit to
the credit of the Forum such fee as may be specified,
for payment to the appropriate laboratory for carrying out the
necessary analysis or test in relation to the goods in
question;
(e) the District Forum shall remit the amount deposited
to its credit under clause (d) to the appropriate
laboratory to enable it to carry out the analysis
or test mentioned in clause (c) and on receipt of the report
from the appropriate laboratory, the District Forum shall
forward a copy of the report along with such remarks
as the District Forum may feel appropriate to
the opposite party;
(f) if any of the parties disputes the correctness of
the findings of the appropriate laboratory, or
disputes the correctness of the methods of analysis
or test adopted by the appropriate laboratory, the District Forum
shall require the opposite party or the complainant to submit in
writing his objections in regard to the report made by
the appropriate laboratory;
(g) the District Forum shall thereafter give a reasonable
opportunity to the complainant as well as the
opposite party of being heard as to the correctness
or otherwise of the report made by the appropriate laboratory
and also as to the objections made in relation thereto
under clause
(f) and issue an appropriate order under section 14.
(2) the District Forum shall, if the complaint received by it under
section 12 relates to goods in respect of which the procedure
specified in sub-section (1) cannot be followed,
or if the complaint relates to any services,-
(a) refer a copy of such complaint to the opposite
party directing him to give his version of the
case within a period of thirty days or such extended
period not exceeding fifteen days as may be granted by the District
Forum;
(b) where the opposite party, on receipt of a copy, of
the complaint, referred to him under clause (a)
denies or disputes the allegations contained in
the complaint, or omits or fails to take any action to represent
his case within the time given by the District Forum, the District
Forum shall proceed to settle the consumer dispute,-
(i) on the basis of evidence brought to its notice
by the complainant and the opposite party, where
the opposite party denies or disputes the allegations
contained in the complaint, or
(ii) on the basis of evidence brought to its notice by the complainant
where the opposite party omits or fails to take any action
to represent his case within the time given by
the Forum.
(3). No proceedings complying with the procedure laid down in
sub-sections (1) and (2) shall be called in question
in any court on the ground that principals of
natural justice have not been complied with.
(4) For the purposes of this section, the District Forum shall have
the same powers as are vested in a civil court
under Code of Civil Procedure, 1908 while trying
a suit in respect of the following matters, namely:-
(i) the summoning and enforcing the attendance
of any defendant or witness and examining the
witness on oath,
(ii) the discovery and production of any document or
other material object producible as evidence,
(iii) the reception of evidence on affidavits,
(iv) the requisitioning of the report of the concerned
analysis or test from the appropriate laboratory
or from any other relevant source.
(v) issuing of any commission for the examination of any witness, and
(vi) any other matter which may be prescribed.
(5) Every proceeding before the District Forum shall be deemed to be
a judicial proceeding within the meaning of sections 193 and 228 of
the Indian Penal Code (45 of 1860), and the District
Forum shall be deemed to be a civil court for
the purpose of section 195, and chapter XXVI of the Code
of Criminal Procedure, 1973 (2 of 1974).
(6) Where the complainant is a consumer referred to in sub-clause (iv)
of clause (b) of sub-section (1) of section 2, the provisions
of rule 8 of Order I of the First Schedule to
the Code of Civil Procedure, 1908 (5 of 1908)
shall apply subject to the modification that every reference
therein to a suit or decree shall be construed as a reference
to a complaint
or the order of the District Forum thereon.
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(i)
When the case is not a simple case of deficiency in service and
involves determination
of complex questions of facts and law, which cannot
be satisfactorily determined by the redressal agency in the time
frame provided under
the rules, it would be better for the complainant to seek
redress of this grievances in a Civil Court, if so advised; Harbans
& Co. v. State
Bank of India, II (1994) CPJ 456: 1994 (I) CPR 381.
(ii) If "fraud" is alleged, it is desirable that the
complainant should be
directed to Civil Court as investigation about such fraud is required
to be done; Jayantilal
Keshavlal Chauhan v. The National Insurance Co. Ltd.,
1994 (I) CPR 396.
(iii) A consumer
knocking at the door of the redressal agency under the
Act for relief in
a consumer dispute must do so with clean hands; Sagli Ram
v. General Manager, United India Insurance Co. Ltd., II (1994)
CPJ 444:
1994 (I) CPR 434. |
14.
Finding of the District Forum.-
(1) If, after the proceeding
conducted under section 13, the District Forum is satisfied
that the goods complained against suffer from
any of the defects specifies in the complaint
or that any of the allegations contained in the complaint about
the services are proved, it shall issue an order to the
opposite party directing him to [do] one or more
of the following things, namely:-
(a) to remove the defect pointed out by the appropriate laboratory form
the goods in question;
(b) to replace the goods with new goods of similar description
which shall be free from any defect;
(c) to return to the complainant the price, or, as the
case may be, the charges paid by the complainant;
(d) to pay such amount as may be awarded by it as compensation
to the consumer for any loss or injury suffered
by the consumer due to the negligence of the opposite
party;
(e) to remove the defects or deficiencies in the services in question;
(f) to discontinue the unfair trade practice or the restrictive
trade practice or not to repeat them;
(g) not to offer the hazardous goods for sale;
(h) to withdraw the hazardous goods from being offered for sale;
(i) to provide for adequate costs to parties.
(2) Every proceeding referred to in sub-section (1) shall be conducted
by the President of the District Forum and at least one
member thereof sitting together: Provided
that where the member, for any reason, is unable to conduct the
proceeding till it is completed, the President and the
other member shall conduct such proceeding de
novo.
(2A). Every order made by the District Forum
under sub-section (1) shall be signed by its President
and the member or members who conducted the proceeding:
Provided that where the proceeding is conducted by the
President and one member and they differ on any
point or points, they shall state the point or
points on which they differ and refer the same to the other member for
hearing on such point or points and the opinion of the
majority shall be the order of the District Forum.
(3) Subject to the foregoing provisions, the procedure relating to the
conduct of the meetings of the District Forum, its sitting
and other matters shall be such as may be prescribed
by the State Government.
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(i)
Compensation is to be given for loss or injury suffered by a
consumer, due to
negligence of the opposite party; S K Lakhotia v. National
Insurance Co. Ltd., 1994 (I) CPR 43.
(ii) The party to
be awarded compensation has not only to show deficiency
in service but also
the negligence of the other party and without the finding
or negligence there cannot be any award; Director, Himachal
Institute of Engineering
and Technology v. Anil Kumar Gupta, 1994 (I)CPR 182.
(iii) Delay in delivery after booking of a car is no deficiency;
M/s Maruti
Udyog Ltd. v. Bhuvana Viswanathan, II (1993) CPJ 172 (NC).
(iv) Redressal forums have no jurisdiction in matter involving
outright sale
of immovable property at an auction; Allied (Garments) Exports
Industries Pvt.
Ltd. v. D.D.A., II (1992) CPJ 505 (NC).
(v) Consumer Forums have no jurisdiction to pass interim orders;
District Manager,
Telephones v. M/s Munilal Brij Mohan, I (1993) CPJ 41 (NC).
(vi) If a consumer sustained any loss or damage actually, he is
entitled to
compensation; Padamanav Dash v. Divisional Rly. Manager, S.E.
Rly.,1994 (I) CPR 77.
(vii) The Fora have no jurisdiction to pass interim order. The
complaint was
filed to restrain a public issue. It was also held that unsuccessful
applicants, who
have not been allotted any shares cannot prefer a complaint
under the Act; Morgan Stanley v. Kartik Das, II (1994) CPJ 7
(SC).
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15.
Appeal.- Any person aggrieved by an order made by the District forum
may prefer an appeal
against such order to the State Commission within a period
of 30 days from the date of the order, in such form and manner as
may be prescribed: Provided that
the State Commission may entertain an appeal after the expiry
of the said period of thirty days if it is satisfied that there
was sufficient cause for not finding it within that period.
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(i)
The appellate fora constituted under the Act should not dismiss
the appeal
merely on the ground of default of appearance of the appellant
but the merits
of the case should be considered on the basis of the material
available before
them and thereafter pass appropriate order in the appeal;
General Manager, Telecom v. Jyantilal Hemchand Gandhi, 1993
(III) CPR 155.
(ii) Ordinarily, the appellate Court does not interfere with the
compensation awarded
unless it is too inadequate or too excessive; Narmada
v. Suresh Chandra Mittal, 1993 (I) AJR 631.
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16.
Composition of the State Commission.-
(1) Each State Commission
shall consist of-
(a) a person who is or has been a Judge of a High Court, appointed by
the State Government, who shall be its President:
Provided that no appointment under this clause shall be made except
after consultation with the Chief Justice of the High Court;
(b) two other members, who shall be persons of ability, integrity and
standing and have adequate knowledge or experience of,
or have shown capacity in dealing with, problems
relating to economics, law, commerce, accountancy,
industry, public affairs or administration, one of whom shall
be a woman: Provided that every appointment made under this clause shall
be made by the State Government on the recommendation
of a selection committee consisting of the following,
namely:-
(i) President of the State Commission...................Chairman
(ii) Secretary of the Law Department of the State........Member.
(iii) Secretary, incharge of Department dealing
with consumer affairs in the State...............Member.
(2) The salary or honorarium and other allowances payable to, and the
other terms and conditions of service of, the members
of the State Commission shall be such as may be
prescribed by the State Government.
(3) Every member of the State Commission shall hold office for a term
of five years or up to the age of sixty-seven
years, whichever is earlier and shall not be eligible
for reappointment.
(4) Notwithstanding anything contained in sub-section (3), a person
appointed as a President or as a member before the commencement
of the Consumer Protection (Amendment) Act, 1993,
shall continue to hold such office as President
or member, as the case may be, till the completion of his
term.
17. Jurisdiction of the State Commission- Subject to the other
provisions of this Act, the State Commission shall have
jurisdiction-
(a) to entertain-
(i) complaints where the value of the goods or services and compensation,
if any, claimed exceeds rupees [five lakhs but does not exceed rupees
twenty lakhs]; and
(ii) appeals against the orders of any District Forum within the State;
and
(b) to call for the records and pass appropriate orders in any consumer
dispute which is pending before or has been decided by
any District Forum within the State, where it
appears to the State Commission that such District
Forum has exercised a jurisdiction not vested in it by law, or
has failed to exercise a jurisdiction so vested or has
acted in exercise of its jurisdiction illegally or with material
irregularity.
| COMMENTS
Even
if the appeal is not maintainable, the State Commission can still
treat and decide
the same as revision in exercise of its power under section
17(b) of the Act; C.R. Kataria, Telecom District Manager v. The
Consumer Disputes
Redressal District Forum, 1991 (II) CPJ 682. |
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18.
Procedure applicable to State Commissions.- The
provisions of Section 12, 13 and 14 and the rules
made there under] for the disposal of complaints
by the District Forum shall, with such modifications as may be
necessary, be applicable to the disposal of disputes
by the State Commission.
| COMMENTS
Section
11(2) (c) is not made applicable under section 18 of the Act.
However, principle
in respect of territorial jurisdiction of a State Commission
would be governed under the Code of Civil Procedure; ArisettySanyasi
Raju v. Hindustan Motors Ltd., 1992 (I) CPR 689. |
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18-A.
Vacancy in the office of the President.- When the office of the
President of the
District Forum or of the State Commission, as the case may
be, is vacant or when any such President is, by reason of absence or
otherwise, unable to perform the duties of his office,
the duties of the office shall be performed by
such person, who is qualified to be appointed
as President of the District Forum or, as the case may be, of
the State Commission, as the State Government may appoint
for the purpose.
19. Appeals.- Any person aggrieved by an order made by the State
Commission in exercise of its powers conferred by sub-clause
(i) of clause (a) section 17 may prefer an appeal
against such order to the National Commission
within a period of thirty days from the date of the order
in such form and manner as may be prescribed. Provided that the National
Commission may entertain an appeal after the expiry
of the said person of thirty days if it is satisfied that there
was sufficient cause for not filing it within that period.
20. Composition of the National Commission.-
(1) The National Commission shall consist
of -
(a) a person who is or has been a Judge of the Supreme Court,
to be appointed by the Central Government, who shall be its President;
Provided that no appointment under this clause shall be made except
after consultation with the Chief Justice of India;
(b) four other members who shall be person
of ability, integrity and standing and have adequate
knowledge or experience of, or have shown capacity
in dealing with, problems relating to economics, law, commerce,
accountancy, industry, public affairs or administration,
one of whom shall be a woman: Provided
that every appointment under this clause shall be made by the
Central Government on the recommendation of a selection
committee consisting of the following, namely:-
(a) a person who is a Judge of the Supreme Court, to be nominated
by the Chief Justice of India...........Chairman
(b) the Secretary in the Department of Legal Affairs
in the Government of India .............................Member.
(c) Secretary of the Department dealing with consumer
affairs in the Government of India ............Member.
(2) The salary or honorarium and other allowances payable to and other
terms and conditions of service of the members of the
National Commission shall be such as may be prescribed
by the Central Government.
(3) Every member of the National Commission shall hold office for a
term of five years or up to the age of seventy
years, whichever is earlier and shall not be eligible
for reappointment.
(4) Notwithstanding anything contained in sub-section (3), a person
appointed as a President or as a member before the commencement
of the Consumer Protection (Amendment) Act, 1993,
shall continue to hold such office as President
or member, as the case may be, till the completion of his
term.
21. Jurisdiction of the National Commission.- Subject to the
other provisions of this Act, the National Commission
shall have jurisdiction-
(a) to entertain-
(i) complaints where the value of goods or services and compensation,
if any, claimed exceeds rupees [twenty lakhs];
and
(ii) appeals against the orders of any State
Commission; and (b) to call for the record and pass appropriate orders
in any consumer dispute which is pending before
or has been decided by any State Commission where
it appears to the National Commission that such State Commission
has exercised a jurisdiction not vested in it by law, or has
failed to exercise a jurisdiction so vested, or has acted
in the exercise of its jurisdiction illegally
or with material irregularity.
| COMMENTS
The
powers of National Commission are very limited; Kangara Ananth
Ram v. Telecom
Distt. Engineer, (1991) 1 CPR 391. |
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22.
Power of and procedure applicable to the National Commission.- The
National Commission
shall, in the disposal of any complaints or any proceedings
before it, have-
(a) the powers of a civil court as specified in sub-section (4), (5)
and (6) of section 13;
(b) the power to issue an order to the opposite party directing him
to do any one or more of the things referred to
in clause (a) to (i) of sub-section (1) of section
14, and follow such procedure as may be prescribed
by the Central Government].
23. Appeal.- Any person, aggrieved by an order made by the National
Commission in exercise of its powers conferred by sub-clause
(i) of clause (a) of section 21, may prefer an
appeal against such order of the Supreme Court
within a period of thirty days from the date of the order: Provided
that the Supreme Court may entertain an appeal after the expiry
of the said period of thirty days if it is satisfied
that there was sufficient cause for not filing
it within that period.
24. Finality of orders.- Every order of a District
Forum, the State Commission or the National Commission
shall, if no appeal has been preferred against
such order under the provisions of this Act, be final.
24A. Limitation period.-
(1) The District Forum, the State Commission or
the National Commission shall not admit a complaint unless it is filed
within two years from the date on which the cause of
action has arisen.
(2) Notwithstanding anything contained in sub-section
(1), a complaint may be entertained after the
period specified in sub-section (1), if the complainant
satisfies the District Forum, the State Commission or the National
Commission, as the case may be, that he had sufficient cause for
not filing the complaints within such period: Provided
that no such complaint shall be entertained unless the National
Commission, the State Commission or the District Forum,
as the case may be, records its reasons for condoning
such delay.
24B. Administrative Control.-
(1) The National Commission, shall have administrative
control over all the State Commissions in the following matter,
namely;-
(i) calling for periodical return regarding the institution, disposal,
pendency of cases;
(ii) issuance of instructions regarding adoption of uniform procedure
in the hearing of matters, prior service of copies
of documents produced by one party to the opposite
parties, furnishing of English translation of judgments
written in any language, speedy grant of copy of documents;
(iii) generally overseeing the functioning of the State Commission or
the District Fora to ensure that the objects and
purposes of the Act are best served without in
any way interfering with their quasi-judicial freedom.
(2) The State Commission shall have administrative control over all
the District Fora within its jurisdiction in all
matters referred to in sub-section (1).
25. Enforcement of orders by the Forum, the State Commission to the
National Commission.- Every order made by the
District Forum, the State Commission or the National
Commission may be enforced by the District Forum,
the State Commission or the National Commission, as the case may
be, in the same manner as if it were decree or order
made by a Court in a suit pending therein and
it shall be lawful for the District Forum, the State
Commission or the National Commission to send, in the event of its
inability to execute it, such order to the court within
the local limits of whose jurisdiction,-
(a) in the case of an order against a company, the registered office
of the company is situated, or
(b) in the case of an order against any other person, the place where
the person concerned voluntarily resides or carries on business or personally
works for gain, is situated, and thereupon, the court to which the order
is so sent, shall execute the order as if it were a decree or order
sent to it for execution.
26. Dismissal of frivolous or vexatious complaints.- Where a
complaint instituted before the District Forum,
the State Commission or, as the case may be, the
National Commission is found to be frivolous or vexatious,
it shall, for reasons to be recorded in writing, dismiss the
complaint and make an order that the complainant shall
pay to the opposite party such cost, not exceeding
ten thousand rupees, as may be specified in the
order.
| COMMENTS
(i)
Where the issue involved is a legal issue, the complaint cannot
said to be
frivolous; Rasikalal Mohanlal v. Apollo Tyres Ltd., 1992 (II)
CPR 327.
(ii) Where the complaint is mala fide, vexatious and frivolous
and the opposite
party has to incur expenses for contesting the complaint, the
Redressal Fora should
saddle the complainant with costs; K. Jayaraman v.The Poona Hospital
and Research Centre, 1994 (I) CPR 23.
(iii) Merely because no court fee is payable for lodging a complaint
before the consumer
forums, parties have a tendency to misuse the provisions
of the Consumer Protection Act in respect of matters not
falling within its
purview. The tendency must be discouraged; Orissa Vegetable
Oil Complex Ltd. v. State of Orissa, 1994 (I) CPR 32.
(iv) Cost can be
saddled with only in case of fraudulent or vexatious complaints;
Vihol Jaswantsingh Shivaji v. The Asstt. Branch Manager,New India
Insurance Co. Ltd., 1994 (I) CPR 417. |
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27.
Penalties.- Where a trader or person against whom a complaint is
made [or the complainant]
fails or omits to comply with any order made by the
District Forum, the State Commission or the National Commission, as
the case may be, such trader or person [or complainant]
shall be punishable with imprisonment for a term
which shall be not less than one month but which
may extended to three years, or with fine which shall not be
less than two thousands rupees but which may extend to ten thousand
rupees, or with both: Provided that the District Forum,
the State Commission or the National Commission,
as the case may be, may, if it is satisfied that the circumstances
of any case so require, impose a sentence of imprisonment or
fine, or both, or a term lesser than the minimum term and the amount
lesser than the minimum amount, specified in this section.
MISCELLANEOUS
28.Protection of action taken in good faith.- No suit, prosecution
or other legal proceedings shall lie against the members
of the District Forum, the State Commission or
the National Commission or any officer or person
acting under the direction of the District Forum, the State Commission
or the National Commission for executing any order made by it
or in respect of anything which is in good faith done
or intended to be done by such member, officer
or person under this Act or under any rule or
order made hereunder.
29. Power to remove difficulties.-
(1) If any difficulty arises in giving effect
to the provisions of this Act, the Central Government may, by
order in the Official Gazette, make such provisions not
inconsistent with the provisions of this Act as
appear to it to be necessary or expedient for
removing the difficulty: Provided that no such order shall be made after
the expiry of a period of two years from the commencement
of this Act.
(2) Every order made under this section shall, as soon as may be after
it is made be laid before each House of Parliament.
29A. Vacancies or defects in appointment not invalidate orders.- no
act or proceeding of the District Forum, the State
Commission or the National Commission shall be
invalid by reason only of the existence of any vacancy
amongst its members or any defect in the constitution thereof.
30. Power to make rules.-
(1) The Central Government may, by notification,
make rules for carrying out the provisions contained in [clause
(a) of sub-section (1) of section 2] clause (b) of sub-section
(2) of section (4) sub-section (2) of section 5, clause
(vi) of sub-section (4) of section 13, section
19, sub-section (2) of section 20 and section
22 of this Act.
(2) The State Government may, by notification, make rules for carrying
out the provisions contained in [clause(b) of sub-section(2)
and sub-section(4) of section 7], sub-section(3)
of section 10, clause(c) of sub-section(1) of
section 13, sub-section(3) of section 14, section 15 and
sub-section(2) of section 16.
31.Laying of rules.-
(1) Every rule made by the Central Government under this Act shall
be laid, as soon as may be after it is made, before each House
of Parliament, while it is in session, for a total period of thirty
days which may be comprised in one session or in two
or more successive sessions, and if, before the
expiry of the session immediately following the
session or the successive sessions aforesaid, both Houses agree in
making any modification in the rule or both Houses agree
that the rule should not be made, the rule shall
thereafter have effect only such modified form
or be of no effect, as the case may be; so, however, that any
such modification or annulment shall be without prejudice to the
validity of anything previously done under that rule.
(2) Every rule made by a State Government under this
Act shall be laid as soon
as may be after it is made, before the State Legislature.
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