PROJECT ON CONSUMER CASES.
WHO IS A CONSUMER?
According to Section 2(7) of Consumer Protection Act, 2019[iii], a “consumer” is defined as
a person who buys any goods or avails a service for a consideration. It does not include a
person who obtains a good for resale or a good or service for commercial purpose. For
example, a person buying milk from the shop for personal use is termed as a consumer
whereas, a person buying the milk for making sweets which he is going to sell in his shop is
not a consumer.
It covers transactions through all modes including offline, and online through electronic
means, teleshopping, multi-level marketing or direct selling.
WHAT IS THE CONSUMER PROTECTION
ACT?
The Consumer Protection Act, implemented in 1986, gives easy and fast compensation to
consumer grievances. It safeguards and encourages consumers to speak against insufficiency
and flaws in goods and services. If traders and manufacturers practice any illegal trade, this
act protects their rights as a consumer. The primary motivation of this forum is to bestow aid
to both the parties and eliminate lengthy lawsuits.
This Protection Act covers all goods and services of all public, private, or cooperative
sectors, except those exempted by the central government. The act provides a platform for a
consumer where they can file their complaint, and the forum acts against the concerned
supplier and compensation is granted to the consumer for the hassle he/she has encountered.
What are the consumer rights?
Right to Safety
Means right to be protected against the marketing of goods and services, which are hazardous
to life and property. The purchased goods and services availed of should not only meet their
immediate needs, but also fulfil long term interests.
Before purchasing, consumers should insist on the quality of the products as well as on the
guarantee of the products and services. They should preferably purchase quality marked
products such as ISI, AGMARK, etc
Right to be Informed
Means right to be informed about the quality, quantity, potency, purity, standard and price of
goods to protect the consumer against unfair trade practices.
Consumer should insist on getting all the information about the product or service before
making a choice or a decision. This will enable him to act wisely and responsibly and enable
him to desist from falling prey to high pressure selling techniques.
Right to Choose
Means right to be assured, wherever possible of access to variety of goods and services at
competitive price. In case of monopolies, it means right to be assured of satisfactory quality
and service at a fair price. It also includes right to basic goods and services. This is because
unrestricted right of the minority to choose can mean a denial for most of its fair share. This
right can be better exercised in a competitive market where a variety of goods are available at
competitive prices
Right to be Heard
Means that consumer's interests will receive due consideration at appropriate forums. It also
includes right to be represented in various forums formed to consider the consumer's welfare.
The Consumers should form non-political and non-commercial consumer organizations
which can be given representation in various committees formed by the Government and
other bodies in matters relating to consumers.
Right to Seek redressal
Means right to seek redressal against unfair trade practices or unscrupulous exploitation of
consumers. It also includes right to fair settlement of the genuine grievances of the consumer.
Consumers must make complaint for their genuine grievances. Many a times their complaint
may be of small value but its impact on the society may be very large. They can also take the
help of consumer organisations in seeking redressal of their grievances.
Right to Consumer Education
Means the right to acquire the knowledge and skill to be an informed consumer throughout
life. Ignorance of consumers, particularly of rural consumers, is mainly responsible for their
exploitation. They should know their rights and must exercise them. Only then real consumer
protection can be achieved with success.
HOW TO FILE A COMPLAINT?
Within two years of purchasing the product or services, the complaint should be
filled.
In the complaint, the consumer should mention the details of the problem. This can be
an exchange or replacement of the product, compensation for mental or physical
torture. However, the declaration needs to be reasonable.
All the relevant receipts, bills should be kept and attached to the complaint letter.
A written complaint should be then sent to the consumer forum via email, registered
post, fax or hand-delivered. Acknowledgement is important and should not be
forgotten to receive.
The complaint can be in any preferred language.
The hiring of a lawyer not required.
All the documents sent and received should be kept.
CASES BY CONSUMERS
Karnataka Power Transmission Corporation v Ashok Iron Works Private
Limited [III (2009) CPJ 5 SC]
Date of Decision: 09.02.2009
The appellant corporation contended that the complaint filed by the respondent was not
maintainable as (I) a company is not a 'person' under section 2(1)(m) of the Consumer
Protection Act, 1986 (CPA); (ii) the complainant is not a 'consumer' within section 2(1)(d) of
the said Act since it purchased electricity for commercial production; and (iii) disputes
relating to sale and supply of electricity were not covered under 'service' under section 2(1)
(o) of the CPA. The Apex Court rejected the appellant's contention that a company was
excluded from the definition of 'person'. In this, the Court relied upon the English Court
decision in Dilworth v Commissioner of Stamps [(1899) AC 99] and its own in Reserve Bank
of India v Peerless General Finance and Investment Company Limited. and Others [(1987) 1
SCC 424] and reiterated that the use of the word 'includes' in a statute often showed the
intention of the Legislature to give an extensive and enlarged meaning to such expressions
though sometimes, the context might suggest that 'includes' was designed to mean 'means.'
The setting, context and object of an enactment might provide sufficient guidance for
interpretation. The Court also referred to section 3(42) of General Clauses Act which defines
a 'person' to include a company, etc., and went on to observe that out of the four categories
mentioned in section 2(1)(m) of the CPA, the third i.e., co-operative society was corporate,
which showed that the Legislature intended to include bodies corporate as well as
incorporate.
Thus, the definition of 'person' was inclusive and not exhaustive. When so construed, 'any
person' mentioned in the definition of 'consumer' in section 2(1)(d) would include a company.
On the appellant's second contention, the Court held that the amendment to the CPA effective
from 15 March 2003, excluding services availed of for commercial purposes, was not
applicable to this case since the controversy related to a prior period. In respect of the
appellant's third contention, the Court held that supply of electricity by the corporation to a
consumer was not sale of goods within section 2(1)(d) of the CPA. For this, the Court relied
upon its decision in Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and
ETIO and Others [(2007) 5 SCC 447], in which the Court had held that 'supply' of electricity
did not mean 'sale' thereof and a case of sup Karnataka Power Transmission Corporation v
Ashok Iron Works Private Limited [III (2009) CPJ 5 SC]
Life Insurance Corporation of India v Gowramm [III (2009) CPJ 25 (NC)]
Date of Decision: 11.05.2009
The petitioner insurer repudiated the life insurance policy in the name of the respondent's late
husband (insured) on the ground of deliberate misstatements and withholding of correct facts
regarding the health of the insured. The lower Fora rejected the various contentions of the
insurer and allowed the complaint. Before the National Commission, the insurer relied upon
the Commission's decision in L.I.C. of India and Another v Parveen Dhingra [II (2003)
CPJ 70 (NC)] and contended that revival of the policy constituted a new contract between the
parties and the limitation period of two years under section 45 of the Life Insurance Act,
1938 had to be counted from the date of revival. Therefore, the misstatements and
concealment of facts could be made a ground for repudiation even though same were not
made a ground at the time of initial policy. The Commission referred to the Supreme Court
decision in Mithoolal Nayak v Life Insurance Corporation of India [AIR 1962 SC 814]
where the Court had rejected a similar contention that the revival of the policy constituted a
new contract between the parties and held that section 45 was clear that the period of two
years was to be reckoned from the date on which the policy was originally affected. The
Commission observed that the decision of Supreme Court had to be preferred and followed.
New India Assurance Company Limited v Abhilash Jewellery [III (2009)
CPJ 2 (SC)]
Date of Decision: 22.01.2009
The complainant/respondent, who had taken a jeweller's block policy, lodged a claim with the
opposite party insurer for loss of gold ornaments. The insurer repudiated the claim on the
ground that the loss occurred when the gold was in the custody of an apprentice, who was not
an employee (because the policy stipulated that for indemnification of the loss, the property
insured had to be "in the custody of the insured, his partner or his employee"). The National
Commission allowed the complaint holding that an apprentice was an 'employee' since
section 2(6) of the Kerala Shops and Commercial Establishments Act (as well as some other
statutes) defined an 'employee' to include an 'apprentice'. The Supreme Court, however, held
that the word 'employee' in the contract of insurance mentioned had to be given the meaning
in common parlance. The definition in the local Act, including an 'apprentice' in the category
of 'employee', was only a 'legal fiction', which is a concept in law and could not be applied to
an insurance contract. The Court, therefore, allowed the appeal.
Malka Tarannum v Dr. C. P. Gupta [III (2009) CPJ 49 (NC)]
Date of Decision: 20.04.2009
The District Forum allowed the complaint of the complainant that there was negligence in
applying (the first) plaster cast on the complainant's daughter's fractured hand, which led to
the need to apply the plaster for the second time. In appeal, the State Commission dismissed
the complaint and also held that the complainant was not a consumer since he was not
charged any fee for the treatment. In revision, the National Commission held that application
of the plaster for the second time did not imply medical negligence on the first occasion since
application of POP slab (also known as temporary cast) was a normal procedure adopted in
the first instance whenever there was swelling at the site of the injury. Relying on the
Supreme Court decision in Jacob Mathew v State of Punjab and Another [(2005) 6 SCC 1],
the Commission observed that the doctor who had applied the plaster in the first instance was
a senior orthopaedic specialist with considerable experience and the complainant could not
dispute his professional decision on the basis of mere allegations, without any expert
evidence. The Commission also rejected the complainant's husband's contention that he was a
consumer since he was covered by the Supreme Court decision in Laxman Thamappa
Kotgiri v G.M., Central Railway and Others and that receiving free medical treatment was
part of the terms and conditions of his service. It held that the complainant took no such plea
before the Fora below and no evidence was produced.
ARVIND SHAH (DR.) V KAMLABEN KUSHWAHA [III (2009) CPJ 121]
Date of Decision: 30.04.2009
The complainant alleged that her deceased son, aged 20 years and otherwise healthy, died as
a result of medical negligence on the part of the appellant doctor (original opposite party)
who administered wrong treatment. The State Commission awarded to the complainant a
compensation of Rs. 5 lakhs with interest and costs. In appeal, the National Commission, on
consideration of the material on record, concluded that the two medical prescriptions, which
the doctor sought to deny, could have been written only by him. It also observed that though,
in the appeal, the doctor admitted for the first time to having treated the patient; he did not
produce any prescription on record. More important, the two prescriptions available on record
did not mention any of the patient's complaints/symptoms, the doctor's clinical observations
on examining the patient or his diagnosis of the ailment. Even the ordinary vital parameters
like temperature, blood pressure, pulse rate, etc., were not noted. The Commission observed
that the Medical Council of India or the State Medical Council, with one of which the doctor
had to be registered to practice modern (allopathic) medicine, required, through their
respective codes of ethics/guidelines/ regulations, to make some minimal record even for
outpatients.
Such a record would ordinarily include a summary of the history of illness and current
complaints/symptoms of the patient and clinical observations of the doctor. If the doctor
considered none of the above as essential, he would need to at least record a provisional
diagnosis of the patient's ailment in the prescription while advising further diagnostic test(s)
or treatment (medicines/injections). This was one of the primary duties of disclosure owed by
a physician of ordinary skills to his patient. The Commission held that in line with the Apex
Court's decision in Samira Kohli v Dr. Prabha Manchanda [I (2008) CPJ 56 (SC)]
regarding need for valid prior consent of the patient for his treatment by a doctor and the
doctor's corresponding duty of disclosure, it was essential for the doctor to write a
prescription with such necessary details and failure to do so would constitute medical
negligence. The Commission further observed that if a patient found that the doctor's
treatment did not help ease his felt problem and wanted to consult another, a prescription with
such details would be necessary. On the other hand, a prescription meeting these basic
requirements would also assist a doctor in demonstrating that he had treated his patient with
due care, if charged with a wrong/false allegation of negligence by the patient. While
returning a finding of medical negligence against the doctor, the Commission found that the
material on record case was insufficient to attribute the patient's death directly and wholly to
the doctor's negligence. Accordingly, it scaled down the compensation to Rs. 2.5 lakh along
with interest.
