The
necessity of Consumer Protection Act was being felt for considerable time as
the consumer was being exploited by the manufacturer, trader also service
provider.
Protection
of consumer right is not new concept. Of course, in India
it is recent phenomenon. It is the by-product of industrial development and
socio-economical advancement. During late 20th century consumers,
rights were rigorously highlighted and bought to the notice of legislators.
Consumer is being centre point of today’s market yet he is taken for granted
and exploited. To protect him from such exploitation special legislation with
enforcement machinery is required. Hereinafter the Consumer Protection Act 1986
is called as CPA. The experience proved that the protection of consumer from
various wrongs for which the remedy under ordinary law for various reasons has
become illusory.[1]
There is some legislation enacted
to protect the interest of consumer but failed to protect because the enforcing
machinery is either corrupt or inefficient.
The CPA has come like a boon to the consumer as legislation ensures
cheap justice, speedy justice and hassle free justice. It cannot be denied that
CPA has fulfilled to considerable extent the aspiration of the consumer. The
remedies under the CPA are in addition to remedy under other laws and not in
derogation.[2] Remedy
under other general laws continues along with CPA.
The Act came into force on 15
April 1987. Further, the act was amended in 1991, 1993 and 2002 to make wider
application and more effective.[3]
CPA defines consumer, service, consumer dispute, deficiency, defect,
restrictive trade practice and unfair trade practices. Act is deserver to be
appreciated because sale of goods and service by public under taking is also
not spared along with co-operative society and private sector. CPA has provided
the three qusi-judical authority with well-defined jurisdiction with appeal
system to adjudicate the consumer dispute. Consumer can present the case before
the authority without hiring advocate. Registered Consumer association and
state is empowered to file case on behalf of consumer.
Who is consumer?
Consumer means any person who
1.
Buys any goods for consideration that has been paid or
promised or partly paid and partly promised or under any system of differed
payment.
2.
Includes any user of such goods other than the buyer
when such use is made with consent of buyer.
3.
Does not include a person who obtains goods for resale
or for any commercial purpose. Commercial purpose does not include use of goods
by buyer for earning his livelihood by way of self-employment.[4]
Consumer may be either natural or legal person
whether registered or unregistered including co-operative society. Consumer may
be person of any age and need not be sound-minded person, where as in Contract
Act and Sale of goods Act the consumer has to be major and sound-minded person
because the transactions between the buyer and seller is governed by principles
of contract. Consumer definition is not confined to the buyer himself it
includes person who uses goods with the consent of buyer. For example.
Relatives of buyer, friends of buyer. Consideration for goods may be in any
kind not necessarily in cash and need not be adequate and need not be tendered
immediately also. CPA covers variety of transactions like sale of goods for
goods, sale of goods for service, and omission as consideration for goods.
Under sale of Goods Act, the consideration for sale is price so the Act has
very limited application,[5]
where as in CPA consideration is not defined in terms of money. The well
settled unambiguous definition of consideration of Contract Act is made
applicable.[6] However,
Dr V.K. Agrwal in his book suggested that the word consideration is confusing
and it should be replaced by price or money.[7]
Author submits that it is not right suggestion other wise it would exclude
variety of transaction in the market and makes limited application of act.
The term consumer does not
include a person who buys goods for resale and commercial purpose. Consumer
means the person who is ultimate user or end in himself. Commercial purpose is
not defined but explanation is added by way of amendment in 1991. Commercial
purpose does not include person who buys goods and uses for earning his livelihood
by means of self-employment. A person purchases taxi, runs taxi and earns his
livelihood by way of self-employment is consumer and not considered as
commercial purpose. The Act has differentiated between the person who buys
goods for resale and commercial purpose. Incase of commercial purpose, the
person who buys goods and by using such goods earns his livelihood is called
consumer and others who uses goods in large scale and earns more money is not
consumer. Such classification in commercial purpose is reasonable and
appreciable. The same logic should have applied in case of resale. Main
employment in India whether
rural or urban area is small ‘kirani’ shop where goods are resold. Here also
the owner of ‘kirani’ shop instead of using the goods merely sells good to earn
his livelihood is also self-employment but he is not considered as consumer so
he has been treated differently which is harsh. Equal protection of law is
integrated doctrine of equality. Benefits of CPA is offered to small earner on
self-employment under the commercial purpose and it is denied to other small
earners on the self-employment basis in resale is hard to digest. Use of goods
must include resale of goods for self-employment.
The second category of consumer
is related to the hire or user of service. Consumer for the purpose of service
means any person who
1.
Hires or avails of any service for consideration that
has been paid or promised or partly paid and partly promised or under any
system of differed payment.
2.
Includes any beneficiary of such service other than
hirer, when such service is used with the consent of the hirer.
3.
Does not include a person who avails of such service
free of charge, under contract of personal service and for any commercial
purpose. Commercial purpose does not include a person who availed service for
earning his livelihood by way of self-employment.
Consideration, tax or fee.
Utilize the benefit of the CPA
the person must have offered the consideration for goods or service. One third
of India ’s population lives
below poverty line and depends upon goods and service rendered by the State.
State being welfare has certain obligation to uplift the poor people by
implementing social welfare scheme. The cost of such goods and service is
incurred by the state fund that is collected from the people by way of tax.
Naturally, the service and goods offered to such person by the state is not
free but paid one. Even though the person has not paid consideration
individually, yet he has to be considered as consumer under the act. The
question before Supreme Court in Indian
Medical Association V. V.P. Shanta
and others [8]whether
the service rendered to the poor people in the government hospital at free of
cost is covered under the Act, Supreme Court answered negatively. The Supreme
Court differentiated between fee and tax, consideration under the CPA has to be
fee not tax.[9] The
distinction between a tax and fee lies primarily in the fact that tax is levied
as part of common burden while a fee is a payment for special benefit or
privilege.[10] The
patient in the government hospital is not consumer because he is not paid the
consideration. On the other hand, for private hospital Supreme Court held that
where the hospital is charging fee for some patients and not charging to some
other patients, the patient to whom the free service is offered is called the
consumer because his service expenses generally met from the other affluent
patient’s expenses. The Supreme Court observed that,[11]
To hold otherwise
would mean that protection of the act would be available to only those who can
afford to pay and such protection would be denied to those who cannot so
afford, though they are the people who need the protection more. It is
difficult to conceive that the legislature intended to achieve such a result …
We are of the view in such a situation the persons belonging to poor class who
are provided service free of charge are the beneficiaries of the service, which
is hired or availed of by the paying class.
Supreme Court
rightly appreciated that CPA is enacted with object of protect the poor
consumer and any contrary interpretation would result in injustice.
Nevertheless, right now, it restricted this philosophy to the hospital that is
offering service with cost and free of cost to the rich patient and poor
patient respectively.[12] The
Supreme Court might have thought that the time is not ripe to extend the CPA to
the persons who are getting the goods and service from the government on the
basis of tax as consideration otherwise
it would leads to opening of the flood gates of consumer cases.
The
Supreme Court has expressed that all
doctors whether government or private have total obligation to extend medical
aid to the injured immediately to preserve his life without waiting legal formalities
to be complied.[13] In Paschin Bang Khet Mazdoor Samati v. state of W.B., the Supreme Court has
held that denial of medical aid by government hospitals to injured person
amounts to violation of right to life under article 21.[14]
Preservation of human life is of paramount importance. Failure on the part of
governmental hospital to provide timely medical treatment to person in need of
such treatment results in violation of his right to life guaranteed under
article 21 and court could award compensation also to poor victim.[15]
In Kirloskar Brothers Ltd v. Employees, State Insurance Corp. Supreme
Court further extended this philosophy by holding that right to health is
fundamental right of worker, which can be enforced not only against government
but against the private industry also.[16]
The adventurous path taken by the Supreme Court in protecting the poor patient’s
right under the shelter of Article 21 sounds sweet and deserves to be
applauded.
The grim
reality is that this fundamental right has been observed more in breaches than
in observance because of lack of effective enforcing machinery. The CPA has
filled this gap by providing efficient and effective enforcing machinery, which
will makes the fundament rights are real and meaningful to the poor persons. Basic
principles of interpretation guide courts to interpret the social welfare
legislation in the widest sense. Therefore, the people should not be deprived
by the benefit given by the act.[17]
On these premises, consideration under the CPA has to be interpreted, as fee as
well as tax. Such interpretation would further enlarge scope and application of
act, which is just and rational. Until that, the CPA has better protected the
consumers right is half-truth.
District forums are established at each
district having pecuniary jurisdiction of Rs 20 lakh which, easily accessible
and less expensive for consumer to file complaint under the act. The cost
service of housing, insurance, finance and other estate business at the
district places has scaled up and generally cross more than 20 lakh, under such
circumstances the pecuniary jurisdiction of district forum need to be enhanced
otherwise customer has to go to capital to file complaint that is expensive and
inconvenient.
Consumer can
file complaint against any unfair trade practice or restrictive trade Patrice
adopted by the trader and defects in the goods sold by trader and deficiency in
the service. Trader means the person who sells goods or distributes goods and
includes the manufacturer of the goods. Consumer can file complaint not only
against the seller but also against the manufacturer because the remedies
against manufacturer is effective than remedies against the seller which is
very important development in the CPA. This section negates the doctrine of
privity of contract of Contract Act and Sale
of goods Act that has caused considerable injustice to buyer in the earlier
days.
Seller is
under obligation to sell the goods that are free from the defects and in case
of service, free from the deficiency that makes the doctrine of caveat emptor
is dead letter. Now seller has to careful while selling the goods rather than
buyer is careful while purchasing the goods.
Consumer Protection Act protects
the consumer from the defects in the goods and service does not protect form
the dangerous premises where the goods are sold. Seller in either shop or
office sells goods and service. Naturally, the shop and office must be safe for
consumer. The moment consumer enters the premises of seller his safety has to
be considered. Suppose consumer suffers injury because of slippery of floor,
defects in the rack of goods, or fan falls on him under these circumstances the
consumer has no remedy under the Consumer protection Act. CPA has taken care of
defects in the goods and service but not the defects in the premises where the
goods and service is sold. There fore, protection of consumer rights under CPA
is incomplete. The consumer suffers any injury because of danger in the
premises of shop or office, naturally the seller being occupier of the premises
held liable under the Tort but not under Consumer Protection Act. Safety of the
consumer against danger premises in which the goods or service is sold should
have been provided in the Consumer protection Act. Omission of this is serious
lapse in Consumer Protection Act in protecting the consumer rights.
Conclusion.
Undoubtedly, the Consumer
protection Act is hallmark in the protection of consumer rights and our
legislator is second to none in enacting such kind of laws. If enactment of
legislation were parameter for evaluating the civilization then India would have been best-civilized nation. Law
needs to be implemented and enforced to achieve desired results in which India has failed miserably. No doubt, the act
has fulfilled its objectives to a considerable extent but Indian legal system
has to go long way in protecting the consumer rights in real and meaning full
manner. The government does not provide the sufficient funds to consumer
authority to function in efficient manner. Shortage of staff and equipment is
common feature of consumer forums. The success of the consumer protection would
depend on the development and establishment of strong board based consumer
organizations at the grass root level. Our consumer organization is financially
weak because neither the government provides sufficient fund nor consumer
contributes. Non-government consumer organization finds very difficult to
educate consumer and institute the complaint the before the authority. The
ignorance of the Indian consumer of their rights and remedies is the single
major obstacle in the growth of consumer movement. Affluent and educated
consumer is not vibrant because of their negligence or indifferent attitude.
Unless the consumer changes his attitude towards their rights, the law can do
little. Mass education of the consumer
is need of hour to make them conscious of their rights. Looking towards the
illiteracy, ignorance, poverty, and backwardness of consumer, there is lot of work
to be done to create good and healthy environment and protect the rights and
privileges of consumers otherwise the protection of consumer rights will remain
as distant dreams.
* S.G.
Goudappanavar, lecturer, S.C.
Nandimath Law
College
[1] Agarwal,
V. K. Consumer Protection Law and
Practice, [5th Ed,] New
Delhi : B.L.H Publishers Distributors Pvt, Ltd. [2003].
P.10.
[2] See, Consumer Protection Act, 1986. Sec, 3.
[3] Agarwal,
V.K. op ,cit, pp.12-13.
[4] See,
Consumer Protection Act, sec,2[1] [d] sub clause [I]
[5] See, Sale of Goods Act, 1930,
Sec, 4.
[6] See,
Indian Contract Act 1872, Sec, 2[d].
[7] Agarwal,
V.K. op ,cit, p.81.
[8] [1995]
III CPR 412 (SC)
[9] Ibid.
[10] Southern Pharmaceutical and Chemicals V.
State of Kerala
[11] [1995]
III CPR 412 at 427.
[12] Ibid.
[13] Paramananda Katara v. Union of India , AIR 1989 SC 2039.
[14] [1996]
4 SCC 37.
[15] Ibid.
[16] [1996]
2 SCC 1225.
[17] Justice
Sing, G.P. Principles of Statutory Interpretation, [9th Ed.], New Delhi :Wadha and
Company Nagapur, [2005].p.733.
