Consumer Protection Law 1

A Critical Analysis Of The Consumer Protection Act, 2019

Jamia Hamdard

School Of Law( HILSR)

Name- Aman Singh

Cource/Year- Ba.llb/2nd

Section -A

Topic-A Critical Analysis Of

The Consumer Protection Act, 2019
 Consumer Protection Law 2

Definition of consumer

Under section 2(7) of the Act, it is stated that consumer is anyone 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 than the person who buys such goods for consideration paid
or promised or partly paid or partly promised, or under any system of deferred
payment, 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;
or 

(ii) 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 paid or promised, or partly paid and partly
promised, or under any system of deferred payment, when such services are availed
of with the approval of the first-mentioned person, but does not include a person who
avails of such service for any commercial purpose.

If you have bought any goods or hired any service whatsoever for any consideration
or with a promise to pay consideration or with an arrangement which allows you to
pay in instalment (think: EMI), or are using goods or availing services hired by
someone else but with their permission, then you’re a consumer of the good or
service. 

Definition of deficiency in service

Deficiency, within the meaning of the Act, is always of service. So, problems in the
goods purchased are defects and defects in services availed is labelled as a deficiency.
Deficiency is defined in the Act under section 2(11): 

“deficiency” means any fault, imperfection, shortcoming or inadequacy in the

quality, nature and manner of performance which is required to be maintained by or
under any law for the time being in force or has been undertaken to be performed by
a person in pursuance of a contract or otherwise in relation to any service and
includes:

  (i) any act of negligence or omission or commission by such person which causes
loss or injury to the consumer; and 

(ii) deliberate withholding of relevant information by such person to the consumer; 

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So for example, if you have hired a mechanic to refill your bike’s mobile oil and he
negligently uses petrol instead of mobile oil, that will be called a deficiency in
service. Basically, if you face a loss directly because of the acts of the individual
whose service you hired, then it can be labelled a deficiency in service. 

Consumer protection redressal agencies

To protect consumer rights, the Act mentions the establishment of three redressal
mechanisms wherein the consumers can approach to address their grievances. 

District Commission 

This the lowest rung in the redressal commissions that consumers can approach. The
State Government, under section 28(1) establishes at least one district consumer
dispute redressal commission in every district of the state. If the government deems
fit, it can even establish more than one district commission in a district. Every district
commission needs to have a minimum of one president and two members but can
have more members after discussing it with the Central government. If your redressal
value is 1 crore or less than that, then you can approach the district commission. 

Who can file a complaint at the district commission? 

The following people can file a complaint at the commission under section 35(1) of
the Act:

The consumer

i) To whom such goods are delivered, or sold or agreed to be sold or such service
which has been provided or has been agreed to be provided.

ii) Who alleges unfair trade practises in respect of such goods. 

Consumer Association

Any voluntary consumer association registered under the law. It doesn’t matter if

the consumer is part of such association or not. 

One or more consumers appearing on behalf of all consumers with a common

interest

These consumers would first need to get permission from the District Commission to
proceed with the complaint in such a manner. 

The Central Government, The State Government or the Central Authority as the
case might be 
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Under Section 34(2), a complaint can be filed at the District Court under within
whose local limits: 

The opposite party or each of the opposition parties, in case there are more than one,
normally reside, or carry on business, or have a branch or personally work for gain. 

 Any of the opposite parties ordinarily reside, or carry on business, or

personally work for gain. Provided, the permission of the district
commission is taken. 
 Where the cause of action wholly or partly arises. 
 Where the complainant resides or personally works for gain. 

On filing the complaint, it is necessary for the Commission to admit or reject the
complaint within 21 days of receiving the complaint. It is legally prohibited under
Section 36 for the commission to reject a complaint without first hearing the
complainant. It is also necessary for every proceeding to be presided by the President
and one member at least. Where the member who has been sitting for a particular
proceeding is absent, the proceeding can be resumed with another method. 

Once the complaint is admitted, the commission must:

1. Refer a copy of the complaint, within 21 days of the complaint being

admitted, to the opposite party and direct it to give its version of the story
within 30 days or the extended period granted by the commission. 
2. If the opposite party disputes the allegation or fails and omits to take any
action regarding the complaint, then district commission must deal with it
in the following ways. 
3. Must seal the allegedly defective goods, and send them to the appropriate
laboratory after authenticating it in the manner required. It must direct the
laboratory to find if there is any genuine fault with the goods and report its
findings to the commission within 45 days or how much ever time granted
by the commission.
4. Before the goods go to the library, the complainant must be directed to
deposit the sum of money required for testing in the credit of the
commission. 
5. If any of the parties dispute the correctness of the finding of the laboratory,
then the parties must be directed to submit their objections in writing to the
commission.
6. Give a reasonable opportunity to the opposite party or the initiating party to
be heard regarding their objections. 

If the above-mentioned procedure can’t be followed due to the lack of goods to take a
sample from or if the defect alleged is in the service of the opposite party. Then the
commission shall settle the dispute: 

1. On the basis of evidence provided by the complainant or the opposite party

if the opposite party disputes the allegation. 
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2. Take an ex parte decision if the opposite party omits to do anything

regarding the allegations. 
3. Decide the case on its merits if the complainant fails to show up for the
hearing. 

If it’s inconvenient for the party to show up to the commission in person, you can
submit an application for hearing or examination of parties through video
conferencing and if the district commission agrees with the reasons then it may allow
so after recording the reason. 

The commission must deal with the case as expeditiously as possible and endeavour
must be done to dispose of the case within three months if no analysis or testing is
required and five months if analysis and testing are required. 

The District commission has the same power as the district court under this act.

If a party is aggrieved by the order of the district commission then they may prefer an
appeal to the State Commission within 45 days of receiving such order. Even though
the State Commission may entertain the plea after 45 days if sufficient reason is given
by the party. 

The State Commission shall not hear the appeal of the party if the party has to pay a
certain amount ordered to be paid by the District Commission. Minimum 50% of the
amount must be paid before the State Commission will hear the appeal.

State Commission 

The State government establishes a State commission, under section 42(1) of the Act,
in the state through the notification and can even establish regional branches if it
seems fit. Each State Commission shall consist of one President and no less than four
members and a maximum of as many members as is required. 

According to section 47, the State Commission has the jurisdiction to entertain:

(i) complaints where the value of the goods or services paid as consideration, exceeds
rupees one crore but does not exceed rupees ten crores: 

Provided that where the Central Government deems it necessary so to do, it may
prescribe such other value, as it deems fit; 

(ii) complaints against unfair contracts, where the value of goods or services paid as
consideration does not exceed ten crore rupees; 

(iii) appeals against the orders of any District Commission within the State;
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Apart from that, it also has the jurisdiction to call for the records and pass appropriate
orders in any consumer dispute which is pending before or has been decided by any
District Commission within the State, where it appears to the State Commission that
such District Commission 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. 

A bench of the State Commission must consist of a President and one member or
more if the president deems it fit. 

The State Commission also has the power to shift proceedings from one district
commission to another under section 48. The State Commission can do that on its
own cognizance or through an application filed by the parties. But it must be to serve
the purpose of justice. 

State Commission disposes of the case in the exact same method as the District
Commission and also holds the power to review its own cases. 

If aggrieved by the decision, the aggrieved party may prefer an appeal to the National
Commission within 30 days of receiving the order from the state commission. If
sufficient reason is shown then the national commission can also entertain the plea
after the thirty days. 

The national commission shall not listen to an appeal if the person who has to pay a
particular amount from the order of the state commission, has not paid at least 50% of
the amount ordered to be paid.

The appeal must be dealt with expeditiously and endeavours must be made to dispose
of the appeal within 90 days from its date of admission.

National Commission 

Under Section 53(1), the Central Government establishes a National commission

through notification. The main National Commission operates on the national capital
region but the Central government can establish regional branches through
notification. The National Commission must have one president and at least 4
members with the maximum being whatever is prescribed by the national
government. 

The National Commission has jurisdiction, under section 58 of the Act: 

(a) to entertain:

(i) complaints where the value of the goods or services paid as consideration exceeds
rupees ten crores: Provided that where the Central Government deems it necessary so
to do, it may prescribe such other value, as it deems fit; 
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(ii) complaints against unfair contracts, where the value of goods or services paid as
consideration exceeds ten crore rupees; 

(iii) appeals against the orders of any State Commission; 

(iv) appeals against the orders of the Central Authority; 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 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. 

A bench in the National Commission must at least consist of the President and one
member but there can be more members if the President deems it fit.

The National Commission disposes of a case in the same manner as the district
commission and also reserves the right to review its cases suo moto or based on an
application filed by one of the parties.

Section 65(1) also states

All notices, required by this Act to be served, shall be served by delivering or

transmitting a copy thereof by registered post acknowledgment due addressed to
opposite party against whom complaint is made or to the complainant by speed post
or by such courier service, approved by the District Commission, the State
Commission or the National Commission, as the case may be, or by any other mode
of transmission of documents including electronic means:

If the postal delivery guy acknowledges that the post was refused by the party then the
commission must acknowledge the party as duly served under 65(2).

If aggrieved by the decision then an appeal does lie to the Supreme Court if made
within thirty days of receiving the order.

Administrative control

Section 70 of the act states that the national commission shall lay down regulations
for the State Commission after consultation with the Central government, for the
better protection of the consumers and for that purpose must also have administrative
control over all state commissions in the following matters: 

a) monitoring performance of the State Commissions in terms of their disposal by

calling for periodical returns regarding the institution, disposal and pendency of
cases; 
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(b) investigating into any allegations against the President and members of a State
Commission and submitting inquiry report to the State Government concerned along
with copy endorsed to the Central Government for necessary action; 

(c) issuance of instructions regarding the 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 the English translation of judgments written in any language,
speedy grant of copies of documents;

(d) Overseeing the functioning of the State Commission or the District Commission
either by way of inspection or by any other means, as the National Commission may
like to order from time to time, to ensure that the objects and purposes of the Act are
best served and the standards set by the National Commission are implemented
without interfering with their quasi-judicial freedom.

There shall be a monitoring cell instituted by the president of the national commission
and the State Commission shall also have the same administrative control over the
district commission. 

Section 71 of the Act also states that every decision of the commission must be
enforced in the same way as a decree made by the court under Order XXI of the first
schedule of the Civil procedure code. 

Section 72 lays down the punishment on the disobedience of commission orders:

Whoever fails to comply with any order made by the District Commission or the State
Commission or the National Commission, as the case may be, shall be punishable
with imprisonment for a term which shall not be less than one month, but which may
extend to three years, or with fine, which shall not be less than twenty-five thousand
rupees, but which may extend to one lakh rupees, or with both. 

The section further grants the commissions the same power as a judicial magistrate
first class under the Code of Criminal Procedure.

Comparative Analysis of Consumer Protection Act: 1986 and 2019

The amendment of 2019 to the buyer Protection Act came after thirty-three years of
the act being passed. Technology has progressed tons in these years and while the
older act tried to stay updated with small amendments here and there. The repeal of
the older act and therefore the establishment of the 2019 act was much needed. So
what’s new within the Consumer Protection Act, 2019?
First and foremost, while there are judicial pronouncements bringing the purchases
made through online methods under the ambit of consumers. The 2019 Act explicitly
includes the buyer who purchases goods or services online. aside from the inclusion
of online purchases the act has also made endorsers answerable regarding false or
misleading advertisements. within the 1986 act, the onus of that was only on the
 Consumer Protection Law 9

manufacturers and therefore the service providers. Under section 21(2) of the 2019
Act, the commission could even levy a fine of fifty lakhs of the endorser continues to
advertise false information about the products even after getting a notice issued by the
buyer . Misleading advertisements also are under the ambit of ‘Unfair Trade
Practices’ within the new act. Disclosure of private information given within the
course of the transaction is additionally considered an offence under the act. The Act
also proposes provision for product liability wherein the manufacturer not only has
got to catch up on the defective goods but also has got to catch up on any loss or
injury inflicted on the complainant thanks to the defect. So for instance , if a
motorcycle is sold to you and therefore the break is loose and you've got an accident
as a result, the manufacturer has got to catch up on the defect and also compensate
you for the accident which you faced due to the defect.
It’s not just the offence though, the redressal agencies have also skilled changes under
the new Act. While the 1986 act did stipulate for the commissions to either accept or
reject a complaint within 21 days of receiving it, the 2019 act has gone a step further
and stated that if no action has been taken within 21 days then the complaint is to be
assumed to be admitted. The pecuniary jurisdiction of the district commission has also
been raised to ease the burden of the state and national commissions. you'll apply to
the district commission now if the worth of your case is within 1 crore. You don’t
even got to file the complaint at the residence of the other party. It are often filed
where you reside or where the explanation for action arose also . The commissions
even have the facility to review their cases now and may also refer cases to mediation
with the consent of both the parties.

The act also proposes for the establishment of an independent regulator: Central
Consumer Protection Authority (CCPA). While this authority won’t be taking note of
consumer grievances or settling disputes, it'll be taking administrative steps like
imposing liabilities to deal with any unfair trade practises etc. It’s essentially another
body to make sure a stronger presence of consumer rights within the country.

Cases on Consumer Protection Act

Class Action Suit under the buyer Protection Act

In the case of Ambrish Kumar Shukla & 21 others. v. Ferrous Infrastructure Pvt. Ltd.,
the national commission had the question of the legitimacy of sophistication action
suit posed ahead of it. The respondents within the case argued that albeit the interest is
analogous , with multiple causes of action, the provisions of 13(6) won't be binding
on the case and thus a category action suits with multiple consumers can't be
entertained since the consumers only really care about their cases which were
different in relief and thus it can't be considered to be an equivalent interest. The
National Commission rejected this argument stating, while placing reliance on the
rationale of the Supreme Court bench within the case of Chairman, Tamil Nadu
Housing Board, Madras vs. T.N Ganapathy, that provision of 13(6), which allowed
Rule 8 Order 1 of the Civil Procedure Code apply to class-action suits in consumer
disputes, and of 12(1)(c) were to facilitate decisions where an outsized number of
consumers were interested without recourse to every of them filing a private
complaint. The Commission said that the intention of the legislation must be checked
out the interpretation accordingly must be done to subserve the intention of the
legislation.
The intention of sophistication action suits stipulated in Rule 8 Order 1 and by way of
 Consumer Protection Law 10

that, 13(6) and 12(1)(c), was to avoid multiplicity of proceedings and thus choose if a
category action suit are often bought it's that specific intention which has got to be
kept in mind. The commission stated that mere difference within the explanation for
action among the various relief seekers won't be a bar from a category action suit if
the character of the interest asked by all of them is that the same. The commission
took the instance of a builder defaulting in giving the flats to the residents even after
getting paid.

The residents could have different flats like 2BHKs and 4BHKs and 1BHKs and thus
will have different reliefs but all of them share an equivalent interest of either getting
damages from the builder or getting possession of their flats and thus can join together
to institute one suit against the builder. Now, the opposite side thereto is that the
consumers don’t have the choice to only include just some of the aggrieved
consumers within the complaint. On instituting a category action suit, it's the court’s
responsibility to offer notice to all or any consumers curious about the case to hitch
the suit. the value of serving notice to all or any the interested parties are going to be
done at the expense of the one that instituted the suit. Moreover, if the one that
instituted the suit has not done due diligence and is unaware of the case facts, the
commission can substitute the instituting consumers with another interested consumer
from the complaint.

How can a commission decide the pecuniary jurisdiction?

One more question which was posed ahead of the commission was regarding the
grounds on which the pecuniary jurisdiction of the commission is to be decided. The
commission stated that choose the pecuniary jurisdiction the mixture d prices of the
great and therefore the refore the compensation claimed must be taken into
consideration and if its a category action suit then the aggregate prices of all the
products involved and the total compensation claimed must be taken into
consideration choose the pecuniary jurisdiction of the commission. Further clarifying,
the commission also cleared the question regarding whether the market price of the
products is to be considered or the worth at which the products were purchased by the
buyer . The commission stated that the worth was paid to be purchased by the buyer
must be the worth that's considered.

While this decision did come at a time when the buyer Protection Act, 1986 was
within the place. The rationale of this commission was affirmed by the Supreme Court
bench in 2019 within the case of Rameshwar Prasad Shrivastava v. Dwarkadhin
Project (P) Ltd. [(2019) 2 SCC 417].

Limitation Provision within the Consumer Protection Act

In the case of social insurance Company Ltd. v. Hindustan laminated glass
Works Ltd.
., the respondents were seeking Supreme Court interference within the dispute being
heard by the National Commission on the grounds that the complaint was admitted by
the Commission after the duration prescribed by the Statuette of Limitation. The
Court noticed that the delay in filing a complaint happened only due to the delay
caused by the respondent. within the case, the complainant had filed for insurance the
day after the mishap happened but the insurance firm stalled the payment by taking
the opinion of two different surveyors before eventually completely denying payment.
 Consumer Protection Law 11

The court stated that the limitation wasn't alleged to be strictly followed. Rather, a
practical view of the rights of the buyer must be taken into consideration. The court
within the case stated that provision of the limitation can't be strictly construed for the
disadvantage of the buyer , especially where the supplier is causing a delay. If the
delay caused is outside the facility of the complainant then some concession are often
granted. Therefore the Supreme Court allowed the case to be admitted within the
commission.

Trust cannot Lodge a Complaint under the buyer Protection Act

In the case of Pratibha Pratisthan & Ors. v. Manager, Canara Bank & Ors, it had been
stated that since a trust doesn't come under the definition of neither consumer nor
complainant nor even “person”. Therefore the trust cannot lodge a complaint under
the buyer Protection Act. an equivalent was also affirmed within the case of
Consumer Online Foundation through its Managing Trustee, Mr Bejon Kumar Mishra
vs. M/s Supertech Ltd 1114, Hemlunt Chambers 89, 11th Floor, Nehru Place, New
Delhi 110019.

Insurance Company cannot Reject Claims on Technical Grounds

In the case of Om Prakash v. Reliance General Insurance[(2017) 9 SCC 724], The

insurance firm denied the complainant insurance supported his delay in intimating the
insurance firm . The complainant stated that it had been out of his power. The court
finding substance in his argument stated that the lack to satisfy conditions thanks to
circumstances outside the facility of the victim must not be a bar for settling genuine
claims. The Court stated that the buyer Protection Act, 2019 was beneficial legislation
and thus the interpretation of the legislation must be liberal keeping the advantage of
the buyer in mind.
Corporate Bodies are often sued under the buyer Protection Act

In the case of Karnataka Power Transmission Corporation v Ashok Iron Works

Private Limited,

[(2009) 3 SCC 240] the question of whether an organization are often considered a
“person” under the buyer Protection Act. The Court, answering the question within
the affirmative, stated that the definition of “person” in section 2(1)(m) isn't an
exhaustive definition but an inclusive one. The court called that clause to be an
interpretative one and thus urged for interpretation to be through with the intention of
the legislature in mind. The court stated that the legislature wouldn't have intended to
exclude a juristic person from the definition of person enumerated within the Act.
Therefore, corporate bodies were “persons” under the ambit of the act and were
susceptible to be sued under the Act also .
Professional services fall within the scope of the Act
The question of the status of professional services rendered under the buyer Protection
Act was raised within the case of Indian Medical Association v V.P. Shantha et al. .
The status of the service rendered by a medical professional was getting to be seen in
reference to section 2(1)(o) of the Act, which reads as follows:
“service” means service of any description which is formed available to potential
users and includes, but not limited to, the supply of facilities in reference to banking,
financing insurance, transport, processing, supply of electrical or other energy, board
or lodging or both, housing construction, entertainment, amusement or the purveying
 Consumer Protection Law 12

of stories or other information, but doesn't include the

rendering of any service freed from charge or under a contract of private service;

Comparison of 1986 Act with 2019 Act

The apex court stated that since the Act was established for the advantage of the buyer
, the definition of the “service” was also to be construed keeping the “consumer” in
mind. On perusal of section 2(1)(o) if the act, the court stated that the definition of
service was divided into three parts, namely, the most part, the inclusionary part and
therefore the exclusionary part. The court stated that the scope of main part in itself
was extremely wide while placing reliance on another judgement, namely, Lucknow
Development Authority vs. M.K Gupta, where the court had used the definition of
“any” established in Black Law’s dictionary to determine that it meant “all” or
“some” or maybe “one”.The court therein judgement stated that the most part gave the
widest scope to the definition of service with inclusive part adding to the list but not
exhausting it. The exclusive part placed only two things as bars so essentially with all
three added, a service doesn’t are available the ambit of consumer protection act, as
long as it’s freed from charge or personal service.
In the medical association case, it had been contended that service can only bind
occupations and not professions and furthermore, people practising within the medical
community were already answerable to the Medical Council Act. The Supreme Court
rejected both the contentions stating that each professional is to be answerable to a
particular state of competency and thus isn't free from giving damages just in case of
negligence act. The apex court also stated that being answerable to the Indian Medical
Council Act for professional follies is not any solace for the victim of the negligence
of the medical professional. Placing reliance on the changing status of the medical
professionals within the UK where they're deemed to be public servants engaging in
commercial activities on a good scale therefore answerable to an equivalent consumer
rules as other service providers, the court concluded that medical practitioners aren't
free from the ambit of service defined in consumer protection act, merely because it's
a profession. The respondents also placed another contention that since deficiency of
service only refers to inadequacy or shortcoming or faults and therefore the practice
can't be judged on any such fixed norms, it therefore can't be termed a service. The
court placed reliance of section 14(1)(d) of the act wherein it had been mentioned that
the buyer could file for relief for the loss caused thanks to negligent act of the service
provider and thus stated that the deficiency of service was to be ascertained with an
equivalent test as is employed to work out damages thanks to negligence. The
respondents further argued that since the bench was made with a composition which
couldn't understand the complexities of the profession, therefore, it had been not
competent to guage within the case. The court rejected that contention also stating that
the Bench’s job was to seem at a case from a legal perspective and it had been the
work of the parties to place forth the arguments. Help might be taken from experts
within the field to assist propound certain arguments and therefore the bench was
alleged to take all the facts given and state the legal authenticity of it. it's impossible
to place a bench ho is well versed altogether the topic matters that precede it and only
got to be versed within the legal jurisprudence which the President it.
Therefore, the apex court concluded that services rendered by medical practitioners by
way of consultation, diagnosis and treatment (either surgical or medicinal) are within
the ambit of service. Service rendered by the doctor freed from charge shall not be
 Consumer Protection Law 13

considered within the ambit of service under the Act and therefore the payment of a
mere token charge for consultation shall not be considered as consideration for the
treatment.
Services need to be rendered with ordinary care and in accordance with Law
In the case of Poonam Verma v Ashwin Patel & Ors, The court stated, while placing
reliance on the case of Indian Medical Association vs. V.P Shanta et al. (Discussed
above) states that medical practitioners have a requirement of care to their patients.
The court also mentioned the difference between a doctor of homoeopathy and a
doctor of drugs and stated that a doctor of homoeopathy isn't a registered doctor and
thus can’t administer medicinal treatments alleged to tend by registered doctors.
Educational institutions must refund the additional fee paid
In the case of Sehgal School of Competition v Dalbir Singh, the complainant had paid
the whole fees to the coaching institute but left halfway since the coaching institute
wasn't teaching the themes he was curious about learning. On posing for the refund of
the additional amount paid, the institute denied which prompted the complaint with
the national commission. The commission stated that coaching shouldn't charge a
payment amount and directed the coaching institute to refund the additional amount
thanks to the complainant.
Sympathy shouldn't influence compensation
In the case of Nizam Institute of Medical Sciences v Prasanth S. Dhananka & Ors.,
much of the argument revolved round the question regarding the fault of the doctors.
They found guilty of negligence and therefore the complainant asked for 48 crores as
compensation. The court agreed that the compensation was excessive and re-
calculated the quantity required by the complainant. The court said the complainant is
entitled to the quantity that's required by the complainant, but nothing more. The court
said sympathy for the victim cannot influence the compensation awarded and
therefore the court features a responsibility of striking a balance and will only provide
adequate compensation.
Discovery rule for medical negligence
The discovery rule wont to decide when the explanation for arises in cases of a
medical emergency was first propounded in Ayers v. Morgan [397 Pa.282, 154A.2d
788] by the US courts and was adopted by the Indian legal jurisprudence within the
case of V.N.Shrikhande vs Anita Sena Fernandes. within the particular case, the
complainant was negligently treated by the doctor leading to a gauze inside her
stomach creating an infection. The complainant got tested 9 years after the initial
operation within the duration of which she was under constant pain. The respondents
contended that since she didn't visit the doctor even once after the operation and 9
years had passed therefore the entire complaint was barred by limitation. The court in
response to the present borrowed from the US ‘discovery rule’. Under the rule,
negligence might be categorized into two kinds: 1) Patent 2) Latent. So if the damage
inflicted by the doctor thanks to negligence is patent, then the explanation for action
arises on the date the act was committed but, on the opposite hand, if the act did was
latent, then the explanation for action arises when the victim realises the negligence.
The court applying the rule said that the negligence within the case was latent, and
thus the complaint was within limitation.
Both parents and minor can claim for compensation under the buyer Protection Act
In the case of Spring Meadows Hospital & Anr v Harjol Ahluwalia, the court was
presented with the question of whether parents who take their child to the hospital
also are consumers along side the kid . The court answered within the affirmative
stating that when parents take their child to the hospital, they're hiring the services of
 Consumer Protection Law 14

the doctor for his or her child and thus come under the definition of the buyer while
the kid who may be a beneficiary of the service also becomes a consumer. The court
furthermore rejected the contention of the respondent that compensation can only be
awarded to at least one of the parties i.e. the kid and stated that since the kid being
beneficiary faced loss thanks to the negligence and therefore the parent being hirer of
the service also face loss within the sort of mental agony. Both of them are susceptible
to be awarded compensation.
The imposition of a penalty for frivolous consumer claims
In the case of Sapient Corporation Employees Provident Fund Trust v HDFC & Ors.,
the complainant had alleged deficiency of service being provided by the respondent
i.e the bank. The court rejected that argument also held that the complaint made by
the complainant was frivolous and since the act was social legislation and doesn't
charge court fees. There must be a guard against such frivolous complaints and thus
imposed a 25,000 rs fine on the complainant for a frivolous complaint.
Compensation to the complainants for frivolous appeals
In the case of Delhi Development Authority v D.C. Sharma, the appellant had
frivolously instigated a suit against the respondent to stay him from getting the
apartment allotted to him. The court noticed the baseless arguments and therefore the
clear intent of a frivolous suit, stated the following:
We are clearly of the view that unless we make sure that wrongdoers are denied profit
or undue enjoy frivolous litigation, it might be difficult to regulate frivolous and
uncalled for litigations. so as to curb uncalled for and frivolous litigation, the Courts
need to make sure that there's no incentive or motive for uncalled for litigation. it's a
matter of common experience that courts otherwise scarce and valuable time are
consumed or more appropriately wasted during a sizable amount of uncalled for
cases.
It is also a matter of common experience that to realize clandestine objects, false pleas
are often taken and forged documents are filed indiscriminately in our courts because
they need hardly any apprehension of being prosecuted for perjury by the courts or
maybe pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this
Court was constrained to watch that perjury has become how of life in our courts.
It is a typical example of how a litigation proceeds and continues and within the end,
there's a profit for the wrongdoers.
The court imposed a price of two ,00,00 on the appellant to form sure no profit or
benefit involves the people that instituted frivolous lawsuits.
Conclusion
As a consumer, it's imperative for you to know the rights and therefore the reliefs
awarded for violation of these rights. only the consumers during a country adamantly
represent what’s their rights will the sellers and therefore the manufacturers take
precautionary measures to make sure they never become involved over disputes
regarding the violation of consumer rights. With the social legislation for consumers
getting a replacement update and calling out the mistakes and shady practises of
sellers and makers being easier than ever. The onus is now on us as consumers to
make sure our well-being. The maxim principle (buyer beware!) may need been
rendered obsolete because of the new act, but it can only truly go obsolete once we
use the rights that are given to us.

Comparison of the 1986 Act with the 2018 Act

 Consumer Protection Law 15

The Act introduces new provisions related to product liability, Mediation (Alternate
Dispute resolution mechanism) ,Appointment of additional authority ,Investigation
Wing, Powers to search and seizure and unfair contracts. It also creates a new
regulatory body called the Central Consumer Protection Authority and permits
mediation for settlement of consumer complaints.

Extended definitions
These below newly included definitions in the consumer protection bill 2018 in
compare with the consumer protection act 1986

“Advertisement”
means any audio or visual publicity, representation, endorsement or pronouncement
made by means of light, sound, smoke, gas, print, electronic media, internet or
website and includes any notice, circular, label, wrapper, invoice or such other
documents;

“Consumer rights” includes,-

(i) the right to be protected against the marketing of goods, products or services which
are hazardous to life and property;
(ii) the right to be informed about the quality, quantity, potency, purity, standard and
price of goods, products or services, as the case may be, so as to protect the consumer
against unfair trade practices;
(iii) the right to be assured, wherever possible, access to a variety of goods, products
or services at competitive prices;
(iv) the right to be heard and to be assured that consumer’s interests will receive due
consideration at appropriate fora;
(v) the right to seek redressal against unfair trade practice or restrictive trade practices
or unscrupulous exploitation of consumers; and
(vi) the right to consumer awareness;

“Deficiency”
(i) any act of negligence or omission or commission by such person which causes loss
or injury to the consumer; and
(ii) deliberate withholding of relevant information by such person to the consumer;

“Design”,in relation to a product, means the intended or known physical and material
characteristics of such product and includes any intended or known formulation or
content of such product and the usual result of the intended manufacturing or other
process used to produce such product;

“Direct selling”means marketing, distribution and sale of goods or provision of

services through a network of sellers, other than through a permanent retail location;
“e-commerce” means buying or selling of goods or services including digital products
over digital or electronic network;

“electronicserviceprovider” means a person who provides technologies or processes

to enable a product seller to engage in advertising or selling goods or services to a
consumer and includes any online market place or online auction sites;

“endorsement”, in relation to an advertisement, means-

 Consumer Protection Law 16

(i) any message, verbal statement, demonstration; or

(ii) depiction of the name, signature, likeness or other identifiable personal
characteristics of an individual; or
(iii) depiction of the name or seal of any institution or organisation, which makes the
consumer to believe that it reflects the opinion, finding or experience of the person
making such endorsement;

“establishment” includes an advertising agency, commission agent, manufacturing,

trading or any other commercial agency which carries on any business, trade or
profession or any work in connection with or incidental or ancillary to any
commercial activity, trade or profession, or such other class or classes of persons
including public utility entities in the manner as may be prescribed;

“express warranty” means any material statement, affirmation of fact, promise or

description relating to a product or service warranting that it conforms to such
material statement, affirmation, promise or description and includes any sample or
model of a product warranting that the whole of such product conforms to such
sample or model.

“goods” means every kind of movable property and includes “food” as defined in
clause (j) of sub-section (1) of section 3 of the Food Safety and Standards Act, 2006;

“harm”, in relation to a product liability, includes-

(i) damage to any property, other than the product itself;
(ii) personal injury, illness or death;
(iii) mental agony or emotional distress attendant to personal injury or illness or
damage to property; or
(iv) any loss of consortium or services or other loss resulting from a harm referred to
in sub-clause (i) or sub-clause (ii) or sub-clause (iii), but shall not include any harm
caused to a product itself or any damage to the property on account of breach of
warranty conditions or any commercial or economic loss, including any direct,
incidental or consequential loss relating thereto;

“injury” means any harm whatever illegally caused to any person, in body, mind or
property;

“manufacturer” means a person who-

(i) makes any goods or parts thereof; or
(ii) assembles any goods or parts thereof made by others; or
(iii) puts or causes to be put his own mark on any goods made by any other person;

“mediation”means the process by which a mediator mediates the consumer disputes;

“mediator” means a mediator referred to in section 75 “misleading advertisement” in
relation to any product or service, means an advertisement, which-

(i) falsely describes such product or service; or

(ii) gives a false guarantee to, or is likely to mislead the consumers as to the nature,
substance, quantity or quality of such product or service; or
(iii) conveys an express or implied representation which, if made by the manufacturer
or seller or service provider thereof, would constitute an unfair trade practice; or
 Consumer Protection Law 17

(iv) deliberately conceals important information;

“product”means any article or goods or substance or raw material or any extended
cycle of such product, which may be in gaseous, liquid, or solid state possessing
intrinsic value which is capable of delivery either as wholly assembled or as a
component part and is produced for introduction to trade or commerce, but does not
include human tissues, blood, blood products and organs;

“product liability" means the responsibility of a product manufacturer or product

seller, of any product or service, to compensate for any harm caused to a consumer by
such defective product manufactured or sold or by deficiency in services relating
thereto;

“product liability action” means a complaint filed by a person before a District

Commission or State Commission or National Commission, as the case may be, for
claiming compensation for the harm caused to him;

“product manufacturer” means a person who-

(i) makes any product or parts thereof; or
(ii) assembles parts thereof made by others; or
(iii) puts or causes to be put his own mark on any products made by any other person;
or
(iv) makes a product and sells, distributes, leases, installs, prepares, packages, labels,
markets, repairs, maintains such product or is otherwise involved in placing such
product for commercial purpose; or
(v) designs, produces, fabricates, constructs or re-manufactures any product before its
sale; or
(vi) being a product seller of a product, is also a manufacturer of such product;

“product seller”, in relation to a product, means a person who, in the course of

business, imports, sells, distributes, leases, installs, prepares, packages, labels,
markets, repairs, maintains, or otherwise is involved in placing such product for
commercial purpose and includes-
(i) a manufacturer who is also a product seller; or
(ii) a service provider,
but does not include-
(a) a seller of immovable property, unless such person is engaged in the sale of
constructed house or in the construction of homes or flats;
(b) a provider of professional services in any transaction in which, the sale or use of a
product is only incidental thereto, but furnishing of opinion, skill or services being the
essence of such transaction;
(c) a person who-
(I) acts only in a financial capacity with respect to the sale of the product;
(II) is not a manufacturer, wholesaler, distributor, retailer, direct seller or an electronic
service provider;

(III) leases a product, without having a reasonable opportunity to inspect and discover
defects in the product, under a lease arrangement in which the selection, possession,
maintenance, and operation of the product are controlled by a person other than the
lessor;
 Consumer Protection Law 18

“product service provider”, in relation to a product, means a person who provides any
service in respect of such product; “regulations” means the regulations made by the
National Commission, or as the case may be, the Central Authority;

“unfair contract” means a contract between a manufacturer or trader or service

provider on one hand, and a consumer on the other, having such terms which cause
significant change in the rights of such consumer, including the following, namely:-
(i) requiring manifestly excessive security deposits to be given by a consumer for the
performance of contractual obligations; or
(ii) imposing any penalty on the consumer, for the breach of contract thereof which is
wholly disproportionate to the loss occurred due to such breach to the other party to
the contract; or
(iii) refusing to accept early repayment of debts on payment of applicable penalty; or
(iv) entitling a party to the contract to terminate such contract unilaterally, without
reasonable cause; or
(v) permitting or has the effect of permitting one party to assign the contract to the
detriment of the other party who is a consumer, without his consent; or
(vi) imposing on the consumer any unreasonable charge, obligation or condition
which puts such consumer to disadvantage;

Unfair trade practice-

(i) making any statement, whether orally or in writing or by visible representation
including by means of electronic record, which-

(ii) permitting the publication of any advertisement, whether in any newspaper or

otherwise, including by way of electronic record,

(vii) not issuing bill or cash memo or receipt for the goods sold or services rendered in
such manner as may be prescribed;

(viii) refusing, after selling goods or rendering services, to take back or withdraw
defective goods or to withdraw or discontinue deficient services and to refund the
consideration thereof, if paid, within the period stipulated in the bill or cash memo or
receipt or in the absence of such stipulation, within a period of thirty days;

(ix) disclosing to other person any personal information given in confidence by the
consumer unless such disclosure is made in accordance with the provisions of any law
for the time being in force.

CHAPTER III
CENTRAL CONSUMER PROTECTION AUTHORITY
Establishment of New authority Central Consumer Protection Authority (CCPA) is to
promote, protect and enforce the rights of consumers; make interventions when
necessary to prevent consumer detriment arising from unfair trade practices and to
initiate class action including enforcing recall, refund and return of products, etc.

This fills an institutional void in the regulatory regime extant. Currently, the task of
prevention of or acting against unfair trade practices is not vested in any authority.
This has been provided for in a manner that the role envisaged for the CCPA
complements that of the sector regulators and duplication, overlap or potential conflict
 Consumer Protection Law 19

is avoided.

Conclusion:

This bill covered most aspects basic rights of consumers concerning right to be
protected against unfair trade practices in times of digital shopping. This Bill has put
an end to the practice of not issuing bill or cash memo or receipt for the products sold
or services and refusing, after selling goods or rendering services, to require back . it's
believed with none further amendments, if this bill becomes an act it'll put the buyer
in strong position.

As a consumer, it's imperative for you to know the rights and therefore the reliefs
awarded for violation of these rights. only the consumers during a country adamantly
represent what’s their rights will the sellers and therefore the manufacturers take
precautionary measures to make sure they never become involved over disputes
regarding the violation of consumer rights. With the social legislation for consumers
getting a replacement update and calling out the mistakes and shady practises of
sellers and makers being easier than ever. The onus is now on us as consumers to
make sure our well-being. The maxim principle (buyer beware!) may need been
rendered obsolete because of the new act, but it can only truly go obsolete once we
use the rights that are given to us.

References

 Consumer protection Act 2019 (BARE ACT)

 http://www.legalserviceindia.com/legal/article-480-a-critical-analysis-of-the-
proposed-the-consumer-protection-bill-2018.html
 http://www.desikanoon.co.in/
 Consumer Protection Law 20

 https://blog.ipleaders.in/consumer-protection-act-1986-amendment-bill-2018/
 http://www.desikaanoon.com/tag/law/
 https://www.researchgate.net/topic/Law