By Lokesh Bhola
One of the Directive Principles enshrined in the Indian Constitution is that the State shall direct its policy towards securing that the operation of economic system does not result in the concentration of wealth and means of production to the common detriment. Towards this end, various economic and welfare legislations have been enacted including Monopolies and Restrictive Trade Practices Act, 1969 and Consumer Protection Act, 1986. While MRTP Act is directed at prohibition and control of certain trade practices, the Consumer Protection Act is directed towards protecting the interests of consumers by prescribing specific remedies to make good the loss or damage caused to the consumers as a result of defects in goods, deficiencies in services or unfair trade practices.
The Consumer Protection Act, 1986 has raised hope about a virtual revolution in the consumer movement. No law is to be successful or can achieve the desired goal unless it goes down to the masses. If the people were ignorant of their rights, particularly the rights and privileges under the Act, they would not be in a position to enforce them or to combat the evil for the eradication of which the law came into presence.
The consumer movements do not gain momentum unless educative aspect is taken care of. Education in the widest sense may be thought of as the socialization process through radio, television, newspapers, whereby consumer may learn to shun spurious goods and resist traders indulging in unfair practices.
Who is a consumer
A consumer means any person who 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 and 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.
It also means a person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment, and includes any beneficiary of such services other 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.
Who is a professional
Professional means a person who provides special services to a consumer in return of adequate amount of consideration. The services provided by the professionals are included within the ambit of the term “Service” in Section 2(1)(o) of the Consumer Protection Act. It is an essential requirement that the services are provided for consideration and any deficiency in services provided free of cost couldn’t be challenged by the consumer in Consumer Forums. Some of the professionals who are considered by the Consumer Forums as service sectors are advocates, doctors, chartered accountants, builders, educational services, etc.
What is service
Section 2(1)(o) of the Act provides that “service” means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or loading or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
The definition provides a list of eleven sectors to which service may pertain in order to come under the purview of the Act. The list of these sectors is not an exhaustive one. Service may be of any description and pertain to any sector if it satisfies the following criteria:
- Service is made available to the potential users, i.e., service not only to the actual users but also to those who are capable of using it.
- It should not be free of charge, e.g., the medical service rendered free of charge in Government hospital is not a service under the Act.
- It should not be under a contract of personal service.
Some other sectors/professionals/services which are not specified in the definition of service but which have been considered by the Consumer Forums as service sectors from time to time are Advocates, Airlines, Chit Fund, Education, Medical Services, Railway, Investment related services and Telephone services.
What is deficiency
Section 2(1)(g) of the Act provides that, “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.
Deficiency in services of advocates
The Advocates, as professionals, are subject to the Consumer Protection Act, 1986. The complainant, who engages an advocate on payment of fees, is a consumer. An Advocate, when he accepts the brief from the litigant to represent in the courts and conduct the case, as also receives his professional fees, it would be proper to say, that he offers his services to the litigant for consideration.
There is independent statute, namely, the Advocates Act, 1961 under which machinery in the forms State Bar Councils and All India Bar Council are created, who are empowered and authorised to take cognizance of professional misconduct relating to legal practitioners and if found guilty upon inquiry, take action thereunder. Notwithstanding the said provision, District Forum and State Commission shall be competent to entertain such complaints against the Advocate in view of provisions contained in section 3 of the Consumer Protection Act, which lays down:
“Act not in derogation of any other law. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”.
It was held in the case of Kumaran Apartments Owners Association v Civil Rights Cell (1994 II CPR 491), that the misappropriation of client’s money by advocate amounts to deficiency of service and the advocate is liable under the Consumer Protection Act, 1986.
In Sudhir Kumar Chakraborty v Sujay Kumar Chakraborty (1995 1 CPR 549), it was observed that the Consumer Forums have jurisdiction to entertain complaints against lawyers inspite of the alternative remedy available under the Bar Council Act.
Thus, any person who engages the services of an advocate for consideration will be entitled for compensation, for the deficiency in the services of the advocate, under the Consumer Protection Act, 1986.
Deficiency in services of doctors
The Doctors, as professionals, are subject to Consumer Protection Act, 1986. The Hon’ble Supreme Court has held in Indian Medical Association v. V.P. Shanta (1996 CCJ 1 SC) that medical services are covered under the definition of ‘services’. Doctors and hospitals fall within the scope of summary jurisdiction of the Act for the grant of compensation and other reliefs envisaged under the Act to the person suffering any loss on account of any negligence or deficiency in such services.
Service includes rendering of consultation, diagnosis and treatment both medical and surgical. Professional men should possess certain degree of competence and they should exercise reasonable care in discharge of their duties. Medical practitioners do not enjoy any immunity and they can be sued in contract or tort on the ground that they have failed to exercise reasonable skill and care. Service rendered at a government hospital, health center or dispensary where no charge whatsoever is made from any person availing the services and all patients are given free service is excluded from the purview of the Act.
In another case of National Commission, Harjot Ahluwalia v. Spring Meadows Hospital & Ors (II 1997 CPJ 98 NC), it has been held that negligence in giving injection by the nurse without testing the dose is deficiency in service on the part of the hospital. The nurse was duty bound to give the injection under the direct control and supervision of the Doctor, instead she gave the injection in the absence of the doctor. Thus, it is a clear case of negligence of duty on the part of the nurse.
Deficiency in services of builders
The Builders are also a class in itself and are included within the ambit of the term ‘professionals’. Any deficiency in service by the builder towards the complainant will entitle the latter to claim compensation from the former provided the complainant has paid adequate consideration to the builder in lieu of the services.
The National Commission and various State Commissions have decided a series of cases regarding the deficiency in service of builders from time to time.
It was held in Suraya Floor Mill v. New India Manufacturing Co. Ltd. (I 2002 CPJ 79 NC), where there was delay in delivering possession of the flat it amounted to deficiency in service. The term compensation is a more comprehensive term and the claim in that respect would include a claim for damages. The object of providing compensation is to place claimant as far as possible in the same position financially, as he was at the time of entering into contract. Considering the facts of the case deficiency stood established and therefore claim of Rs. 3,49,000 was justified.
It was held in Prem Sanjanani v. Ranka Developers (1993 1 CPR 452), that non-delivery of possession of flat by builder at promised time is deficiency of service and the complainant is entitled for possession, interest and the costs.
Deficiency in educational services
The educational services are included under the term ‘service’ in Section 2(1)(o) of the Act. The authorities imparting educational services are directly liable to pay compensation to the complainant for the deficiency in their services, provided it is for appropriate consideration.
In Ganga Ram Chandana v. The Principal, Doon Public School (II 1996 CPJ 108 New Delhi), student was denied admission in 11th class after passing 10th class. On a careful consideration of the matter, the word ‘service’ was defined in widest possible terms to mean ‘service of any description’. Admittedly education taken as a whole does not fall within the exclusionary clauses of the definition. The exclusionary clauses relate to (a) rendering of any service free of charge and (b) under a contract of personal service.
It was, therefore, held that respondent was guilty of deficiency in service in denying admission to the appellant’s son as a result of which the appellant was obliged to withdraw his son from the school and get him admitted to some other school entailing disturbance and extra expenses. On a consideration of totality of facts, the just and reasonable compensation of Rs. 10,000 was awarded to meet the ends of justice.
The complainant in Sakila Begum v. NIIT Ltd. (I 2003 CPJ 297 Calcutta), deposited Rs. 38,300 for the course of three years and two-year course in Nov. 1997 and waited for one-year professional course. According to the petitioner, a sum of Rs. 1,000 was paid for this practical professional training for one year. The petitioner alleges unfair trade practice on the part of the opposite party in not arranging for training nor did the opposite party take any step for her engagement in any renowned company. Therefore, directions were issued for refund of Rs. 10,000 received by the opposite party for professional training.
Thus, it can be concluded here that an educational institution will be responsible for the deficiency in service but an individual teacher or professor working under the directions of an institution cannot be held liable for the deficiency of his services, as the relationship between teacher and student is not a service under the Act.
Deficiency in courier services
The courier services are included under the term ‘service’ in Section 2(1)(o) of the Act. The agencies providing courier services are directly liable to pay compensation to the complainant for the deficiency in their services, provided it is for appropriate consideration.
In M.G. Ruvinarayan v Professional Couriers (1993 3 CPR 376 NC), where the packet sent through courier contained Rep. Licenses and was lost in transit, it was held that the courier had no knowledge that packet contained valuable licenses and that the consignor had not declared the contents. It was held that the courier was liable for the negligence and therefore quantum of liability fixed at Rs. 1,000/- .
The Act is benevolent social welfare legislation. The procedure for dispensation of justice prescribed under the Act by the Consumer Fora is simple and informal and it can be stated that the proceedings are not adversary, but are inquisitorial.
“Jaago Grahak Jaago”
Despite all impediments, hurdles, lack of infrastructural facilities, the Redressal Agencies, established under the Act in the Union Territory of Delhi, both at the District Level and at the State Level have done a commendable work in the matter of consumer redressal. Out of about 23,00,000 matters filed before the Redressal Agencies from the inception till the end of 2003 about 20,00,000 matters have been disposed of. Though in urban areas awareness amongst the Consumers is picking up but in rural areas the same is almost negligible and a lot requires to be done in that area of Consumer Protection, which can be achieved only by the efforts of local bodies like Gram Panchayats and dedicated non-government organizations.