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9. CONSUMERS PROTECTION.
9-1. Protection.

"CAVEAT EMPTOR" a maxim, in commercial world is

popular (Rather notorious) since centuries. The meaning being
that the purchaser of goods must be beware of the quality of
goods. There is no obligation on the part of seller. Though a
contract can become void by mutual mistake regarding identity,
title, existence, price or quantity of the subject matter, the
incidence of 'Quality' is out of its scope in view of the principle of
"Caveat Emptor". As such the consumer is always under a loss,
when the quality of goods he purchased is not of that mark. If a
pen is purchased, there is no rule that it should write. If a penknife
is purchased there is no rule that it should cut and it would be the
headache of consumer. As the contract entered into by a mistake
of quality is not void, the consumer can not claim restitution under
Sec.65 of Indian Contract Act. Thus the one man i.e., the seller is
becoming rich at the cost of another and the Restitution Principles
under Sec. 68 to 72 of the contract are also not helpful.
2. In view of this blatant injustice to the consumers, there is
awareness in the commercial world and propagated for passing
Consumer Protection Act in every country. In India too. The
Consumers Protection Act 1986 came into force during the regime
of late Rajiv Gandhi and came into force from 26-12-1986.
3. The preamble of the Act says "An act to provide for better
protection of the interests of consumers and for that purposes to
make provisions for the establishment of consumer councils and
others authorities for the settlement of consumers disputes and for
matter connected there with.
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4. In the statement of objects and reasons it also state "Bill

seeks to provide for better protection.
5. There is no need to say "better protection" where there is
none.
6. Peculiarly it is stated that it is intended to provide speedy
and simple redressal to consumer disputes Quasi Judicial
machinery is sought to be set up at the District, the bodies will
observe "natural justice". The District Forms is vested with
jurisdiction up to five lakhs and which is the upper limit. Section-14
of the Act which equally applies to state and Nation Commission
as per section-18 and Section-22 in its original and pecuniary
jurisdiction can order Restitution in several ways.
7. But how far these forums can be accessible for a common in
rural areas in the District is doubtful. So if a rural rustic is purchaser
of goods worth RS.1,000/- and they are found to be inferior quality
driving him to District Head Quarters Forums situated far away is
burden some and unjust remedy. Of course, it is a blessing in
disguise that the jurisdiction of claims in other ways is not taken
away as section-3 of the Act declares that the provisions of the Act
shall be in addition to and not in derogation of the provisions of - -
any other law for the time being in force. ,But where other remedies.
The aggrieved has to claim as a breach of contract or under
General Law of Torts. It is already seen that to claim as a breach
of contract the principle of Caveat Emptor is a hurdle. So far as
Tort is concerned, it is not codified and the principles are not static.
Necessarily he has to waive Tort and claim restitution in par with
English common law.
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8. Thus the Consumers Protection Act though to some extent

Restitution in nature it would not serve the needs of a common man.
As the Act not in derogation of any other law, for the time being in
force and inview of the fact that there is no such law, the scope of
Quasi contractctual obligations is to be extended making it more
wide,

9-2. INTELLECTUAL PROPERTY LAW:

Another set of enactments recently become popular as

Intellectual property law like Trade marks Act, Patents Act, Copy
Right Act.) The Designs Act and other enactments deal with
incorporeal rights. These enactments are intended to give protection
to intellectual abilities of individuals who invent thereby certain novel
things. The Rationale behind these enactments also is to protect the
inventions of the individuals so that no other can enrich themselves
on these acquisitions. The passing of these enactments is
necessitated in view of Global net work and also Globalization of
trade and industry. Now we will examine these enactments briefly
one by one.
9-2-A. THE TRADE MARKS ACT: 1999:-
This Act came into force from 30-12-1999 and replaces an
earlier enactment. "Trade and Merchanolise Marks Act 1958". The
preamble of the Act 47/1999 says that " an act to amend and
consolidate the law relating to trade marks, to provide for
registration and better protection of trade marks for goods and
services........" Under this Act the registration of a trade mark is not
obligatory but optional. But better protection is given if the trade
Mark is registered, the procedure of which is most cumbersome.
The entire act deals with the appointment of machinery for
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Registration of the Trade marks and the guide lines and the penal
provisions in chapter XII for infringement. But no where the Act
speaks of civil remedies for the infringement. The only provision
worth mentioning is Sec-27 of Chapter-III. The first para of Sec.27
bars institution of any proceedings to prevent or recover damages
for the infringement of an unregistered trade marks. But
immediately the para gives relief even to unregistered trade marks
that nothing in the Act shall be deemed to affect the rights of action
against any person for passing of goods or services as the goods
of another person or services provided by another person or the
remedies in respect thereof.
So the registration is optional and the jurisdiction regarding
proceedings of infringement is not taken away. Whether registered
or not an aggrieved person can chose his remedy under ordinary
laws if there is one or under common law. As already stated there
is no civil remedy shown in this Act for infringement of Trade mark
directly and aggrieved has to search for appropriate civil remedy
shown in this Act for infringement of Trade mark directly and
aggrieved has to search for appropriate civil remedy to get
compensation. Though it can not be strictly called restitution still it
is a person enriching at the cost of another.
So we have to find out a suitable legislation for this also as
the other possible remedy in Tort also not being codified in India.

COPY RIGHT Act-1957: This is another enactment as a branch of

Intellection property Acts and this is the oldest Act originally
passed in 1914 and the present Act — came into force from 4th
June 1957. There are also five amending as Acts in 1983, 1984,
1992, 1994 and 1999.
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As with all fields of Intellectual property, copy right is

concerned with protecting work of the human intellect. The domain
copy right is the protection of literary and artistic works. These
include writings, music, works of fine arts, such as paintings and
sculptures and technology based works such as computer
programs and electric data bases. There are other related rights
like broadcasting of sporting events and rights granted to the
beneficiaries.
The owner of copyright in protected work may use the work
as he wishes and may prevent others from using it without his
authorization.
The copy right Act 1957 provides the mechanism for
registration and assignment etc and also remedies for the owner
when there is infringement of copyright. After defining the
Section-51 of chapter XI declares when a copyright is infringed
and Sec. 55 (1) of Chapter XII provides civil remedies for
infringement of copy right. It states as follows:
"Where copyright in any work has been infringed, the owner of
the copy right shall except as otherwise provided by this Act be
entitled to all such remedies by way of injunction, damages
accounts and otherwise as one or may be conferred by law for the
infringement of a right."
In this part itself there is an exception and a provision in
addition is also added as follows:-
"Provided that if the defendant proves that at the date of
infringement he was not aware and had no reasonable ground for
believing that copy right existed in the work the plaintiff shall not
be entitled to any other remedy other than an injunction in respect
of the infringement ..
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Thus this part of the 55(1) is absolutely controlled by the

proviso under which an easy defence is given to the infringer that
he is not aware of the copyright. Want of knowledge of particular
fact is negative factor and it is stated in evidence as negative
burden and it can be discharged by simply stating that he is not
aware. It would become the burden of the copyright owner to
prove that the infringer is aware of the copyright which is toughest
method of discharging the burden of proof.
So here also the infringer is benefited by his act and he is
enriching himself at the costs of owner of copyright. So the civil
remedy for the owner is cumbersome and even for a simple civil
suit only the District Court is having jurisdiction. We have also
seen in the forgoing case law that how to get the relief is not easy
even as Quasi contract.
So it is necessary that the copy right remedies can be
conveniently brought under purview of extended Quasi contractual
obligations.

9-2-C. THE PATENTS ACT: 1970:

Patents are one of the oldest forms of intellectual property

protection and as with all forms of protection for intellectual
property, the aim of it is to encourage economic and technological
development by rewarding intellectual creativity. The purpose of
patent is to provide a form of protection for technological
advances.
The patents Act was passed for India in 1911 as Patents and
Designs Act and later present Act is passed in Indian Parliament in
1970 and a separate Act as Design Act was passed in the year
2000.
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In this Act also a person who obtains a patent after big

procedure is vested with the exclusive right to use the patent
under Sec.48 of the Act.
If any person without authority uses the patent he would be
infringer of the patent. He becomes enriched at the costs of
another in using the patent. The aggrieved has got civil and
criminal remedies. Chapter-XVIII of the Act deals with the civil
suits. Here also the District Court only has jurisdiction to entertain
and grant any relief in respect of Infringement of patent.
Filing of a suit in this regard is made burden by imposing
several conditions. In fact Sec.111 positively Bars granting
damages in case of infringement for defendant who is not aware
or he has no reasonable grounds to believe that the patent is
existed.
So like a copy right infringement, if the defendant pleads that
he is not aware he can escape the liability as it is also a negative
burden discharged by simply denying the knowledge.
Again it becomes the head ache of patentee to prove that
the defendant is aware of the patent or he has grounds to believe
that the patent existed.
So in this Act also no easy remedy is given when others are
enriching themselves at the costs of patentees.
So this can also be brought under purview of Quasi
contracts.

9-2-D. THE DES1GINS ACT-2000:

Yet another recent enactment is the Design Act 2000 came
into force from 25-5-2000 the Act aims at protecting Novel
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Designs which are to be applied to particular trade. The word

Design is defined in Section 2(d) of the Act. After laying down the
procedure for registering a design as in the other enactment
Sec.22 of Chapter-V deals with privacy of a registered design.
Sec. 22(2) places liability on any person who contravenes the
section shall be liable for every contravention (a) to pay to
registered proprietor of the design a sum not exceeding twenty five
thousand rupees recoverable as a contract debt or (b) if the
proprietor elects to bring suit for the recovery of damages for any
such contravention and for injunction against the repetition,
thereof, to pay such damages as may be awarded and to be
restrained by injunction accordingly.
Provided that the total sum recoverable in respect of one
design under clause (a) shalt not exceed fifty thousand rupees.
Provided further that no suit or any proceedings for relief
under this sub-section shall be instituted in any court having
jurisdiction below the court of District judge.
In sub section (3) the available defense for the violation is
specified.
Thus the maximum limit of compensation is fixed and the
jurisdiction is only District Court. If the Registered Proprietor
chooses to proceed under this Act, he has to file a suit in District
Court and the maximum amount he gets is only Rs.50,000/- But if
the Registered proprietor chooses to take up proceedings under
General law of Torts or otherwise he can get compensation upto
one lack in Junior Civil Judge Court and upto 10 lacks in the
Senior Civil Judges Court which is the pecuniary jurisdiction of
those courts.
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So no justice is done under the Act for a registered

proprietor and it is necessary that he should be protected by
Restitution under general law also.

9 – 3 INFORMATION TECHONOLOGY ACT-2000:

Another important subject of recent development is

Information Technology. Storing information in traditional paper
documents has gone and is going gradually. Business man and
consumers are increasingly using computers to create, transmit
and store information in the electronic form. The United Nations
Commission on International Trade Law adopted the model law on
electronic commerce in 1996. As such India being a member
country of World Trade Organization gave favourable
consideration to the said Model law and passed. "The information
Technology Act 2000 "as Act No.21/2000 which came into force
on 17th October-2000
The Act provides to give legal frame work and recognition for
electronic form. Sec-2 defines computer, computer net work,
computer resource and computer system as far as relevant for our
subject.
Importance being given for procedure likes Digital
Signature, appointing certifying Authority etc in Chapter II to VII,
Chapter IX deals with Penalties and Adjudication. Though the
chapter is headed as penalty in the penal sense but actually it is
a compensatory provision to the affected persons. The first
section Sec-43 of chapter IX deals with penalty for damage to
computer, computer system etc. There are eight sub sections
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from 43(a) to 43(h) out of which only (a) and (b) are relevant for
the subject of Restitution. They are as follows:-

Section:43: If any person without permission of the owner or any

other person who is in charge of computer, computer system or
computer net work.
a). accesses or secures access to such computer,
computer system or computer net work.
b). downloads, copies or extracts any datas computer
data base or information from such computer, computer system
or computer net work including information or data held or stored
in any removable storage mediums is liable.
Subsections (c) to (h) deal with damage to system which
is not beneficial to the delinquent. But by doing acts under
subsection (a) and (b) he is getting benefit at the cost of owner.
The damages fixed to be granted should not exceed Rupees
one crore as per the Section. The other subsections may be
tortuous or penal under Indian Penal Code as computer,
computer system etc can definitely be brought under purview of
'property'. But for all these acts the remedy is adjudication as
per Sec. 46 by an adjudicating officer appointed by the Central
Government and the Civil Courts jurisdiction is taken away
under Sec.21.
Appellate remedy is also provided to the Cyber Regulation
Appellate Tribunal constituted by Central Government under Sec-
48. Thus Subordinate Judicial remedies are completely barred.
Peculiarly Section-47 speaks of the factors to be taken into
account by the adjudicating Officer while adjudging quantum of
compensation are:
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a). the achievement of gain or unfair advantage; whenever

quaulifiable made as a result of the default;
b). the amount of loss caused to any person as a result of
the default, the repetitive nature of the default.
Thus this section is nothing but declares the maxim of unjust
enrichment which comes under a Quasi contractual obligation.
Chapter XI deals with offences which can be equally
punishable under chapters XVII and XVIII of I.P.C.