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Published : May 06, 2010 | Author : nagnath_borphalkar
Category : Consumer laws | Total Views : 8709 | Unrated

  
nagnath_borphalkar
Nagnath Chandrakant Borphalkar DOB - 15.02.1984 Education - LLM Nationality - Indian Address - at/ Po - Borphal, Ta - Ausa, Dist - Latur Maharashtra - 413520. Mobile - 9766753430
 

In our day to day life we become consumer through buying goods or services. In the era of science & technology globalization, urbanization and modernization developed rapidly, which resulted into vast competition in market. The traditional view of buying goods and particular services changed and many products, services, and professions came under widened scope of consumer law. As a consumer we have much concern about the money, choice, health and safety of the life. Market is always dominated by the sellers and their attitude towards consumer as weaker section. In last few years’ market is found to be influenced by the false, misleading advertisements or representations, bargaining, offering gifts, prizes, contests and hoardings attracting public for product or services.

Therefore, keeping view of consumer interest legislative and judicial contributions played a significant role in consumer justice. There is need to prevent exploitation of consumer from these sales, manufacturing or unfair trade practices. The scope of the Act extended to public services & utilities also.

To meet the goal of Welfare State, government also responsible to frame policies and implement properly. Government has responsibility to setup Consumer Forums to meet out the objectives of Consumer Protection Act, 1986.[1] The Act is a General Law and if there is a Special Law on the disputed subject matter, then that Special Law will prevail.[2]

The scope of the Act includes the possibility of forthcoming consumers who wants to join such consumer activity. It also includes the protection to consumers against the private and public body and the statutory bodies as well.[3] The Act is to enable a consumer to ventilate his grievances before Forum where justice can be done without any procedural wrangles and hyper – technicalities.[4]
The Act provides various rights to protect the interests of consumers; such rights are as follows:[5]
· Right to safety.
· Right to be informed
· Right to choose
· Right to be heard.
· Right to seek Redressal.
· Right to consumer education.
· Other rights: Healthy environment; Trade codes etc.

When there is any defect, deficiency in service or unfair trade practice or price charged is excess then as a right complaint can be filed by the consumer before Consumer Redressal to get justice. Unfair trade practices are not only concerning the sale of goods but also cover the services, this view is laid down in Mukesh Jain v/s V. K. Gupta.[6]
Therefore, provisions for Consumer Protection constructed in favour of consumers as held in the milestone case Lucknow Development Authority v/s M. K. Gupta[7].

Salient Features of Act
· To provides better protection of consumers.
· To provides establishment of Consumer Dispute Redressal Agencies.
· To provides setup of Consumer Councils.
· To make awareness and provide consumer education.
· No strict procedural rules.
· No need of Lawyers to conduct case.
· Provisions for appeal.
· Doctrine of Caveat Emptor has been recognized and applied.

This paper highlights the some of the major areas in which consumer justice is done.

Housing Industry
In the era of urbanization the housing industry developed rapidly. The builders, contractors, promoters & developers, their agents deceiving peoples who contract with them by way of booking flats, developing lands. Therefore, Act provided protection to housing industries.

In the case of Lucknow Development Authority v/s M. K. Gupta[8] the issues involved were:
1) Whether a statutory authority like Lucknow Land Development Authority comes under Act?
2) Whether housing as a service was covered under the Act?

Answering both issues in affirmatives Court held that, it is an authority and housing is a service, both covered under the Act. Recently, in Mukesh Kumar Verma v/s Krishna Builders[9], the amount was paid by the appellant for the construction of house and possession, which had not constructed properly amount to unfair trade practice and deficiency in service hence appellant entitled for relief.

Medical Profession
Doctor is considered to be GOD for patient.

The litigation of malpractices and medical negligence are increasing day by day. However there are technological innovations and sophisticated equipments that are put up for medical investigation and treatment of diseases. Though medical science has conferred great benefits to mankind these benefits at the same time are attended by risks.[10] In Medical profession the matter of consultation, diagnosis and treatment is involved where a medical practioner or hospital or nursing home renders service in consideration which falls within ambit of Sec. 2 (1) (o) of the Act, as held in Indian Medical Association v/s V. P. Shantha and Ors. [11]
The Supreme Court in Dr. Laxman Balkrishna Joshi v/s Dr. Trimbak Bapu Godbole & Anr,[12] laid down that a Doctor when consulted by a patient owes him certain duties, namely, a) a duty of care in deciding whether to undertake the case b) a duty of care in deciding what treatment to give and c) a duty of care in the administration of that treatment.

A breach of any of these duties gives a cause of action for medical negligence.

Mistaken diagnosis amount to deficiency in service. Similarly negligence of doctors in the operations, prescribing medicines, providing nutritious foods and facilities would amount to deficiency in service. In the case of Spring Meadows Hospital v/s Harjol Ahluwalia[13], Court awarded the damages to the parents of child who suffered irreparable brain damage due to negligence of doctors. Recently, in Kussum Sharma & Ors.v/s Batra Hospital and Research Centre[14], Court held that, there is no medical negligence on the part of doctors as long as they perform their duties and exercise ordinary degree of skills & competence. If it is not within well settled principles of medical negligence than appellant not entitled for relief.

Airlines Services
In the journey fare (ticket) cost of food was included which is the consideration for providing service of food. Any adulterate or low standard food provided by Airline Authority comes under deficiency in service and is liable for compensation.[15]

Banking Services
As the development in the banking sector and technological revolution, the banker and customer relationship becomes matter of standard, prompt and quick service. The term ‘customer’ of a bank is not defined by law. Ordinarily, a person who has an account in a bank is considered as its customer, decided in Abdul Razak & Anr. v/s South Indian Bank Ltd.[16] For the relationship of banker and customer there should be considerable duration of dealings, casual dealings does not constitute such relations, this view discarded by Kerala High Court[17] and laid down that, person who has a bank account in his name and for whom the banker undertakes to provide the services as a banker considered to be a customer.

In Malti Bhat v/s State Bank of India[18], the consumer was a student preparing for the AMIE examination, for that purpose he remitted Rs. 200/- as application fee and exam form, via a bank draft. The application was rejected as the Manager did not sign the draft. The student did not appeared for the examination, the National Commission awarded compensation of Rs. 35000/- to the student. In Ganga Nagar Central Co – operative Bank Ltd. v/s Pupsha Rani & Anr[19], respondent opened an account with the bank and deposited money, but after some period his money was not in account and returned by the bank. The District Forum awarded compensation for deficiency in service, which was upheld by the Apex Court in the appeal.

Telephone Services
The telephone facility provided by the Telecom Department is a service under Act, as held in Union of India v/s Nilesh Agarwal[20]

In famous Three Coin Case where a person was in urgency to deliver message for delay in flight, he used the coin box to call but did not heard due to problem in working of phone. He lost three one rupee coins, Telecom Department refused to pay then he filed complaint before District Forum and awarded Rs. 3/- as refund, Rs. 750/- as damages and Rs. 250/- by way of costs.

Insurances Services
It is fundamental principle of the insurance that almost good faith must be observed by the contracting parties’ i.e. insurer and assured. The obligation of good faith applies to both equally. If the contract is vague, the benefit should be given to the insured.[21] In the advancement of insurance policy benefit should be given to consumer or his legal heirs. In Manjulaben Parmar v/s LIC[22], the assured had a life insurance policy under Jivan Mitra plan. He died within 10 months of taking policy. The LIC rejected claim of his widow. In appeal National Commission directed LIC to pay insured amount Rs. 40000/- and further award of Rs. 20000/- so as she was long time litigating claim , suffered harassment & mental agony.

Advertisement
An advertisement of any product and fault therein comes under preview of unfair trade practice. Therefore, medicine which guaranteed the birth of male child is unfair trade practice, as held in Consumer Education and Research Society v/s M/s Vasu Pharmaceuticals.[23]

Advocacy
However, lawyers are rendering services to his client, but object of Act do not contain any provision which will bring the advocates within scope of Act. It was argued that the definition u/s – 2(1) (d) will not include a client, who has availed of the services of an advocate. It was challenged in Srimati and Others v/s Union of India and Others.[24]
This issue further made clear by the Supreme Court in Lucknow Development Authority v/s M. K. Gupta[25] as follows:

“The term service has variety of meanings. It may mean any benefit or any act resulting in promoting interest or happiness. It may be contractual, professional, public, domestic, legal, statutory etc. The concept of service thus is very wide”.

Educational Institutions
Though the education is not commercial activity in this country, treated as traditional & religious duty. Treated as charitable activity. Imparting education has been never treated as a trade or business in this country.[26]. But due to changing commercial purpose and injustice to students by the educational institutions Maharashtra State Commission, in Abel Pacheco Gracias v/s Principal, Bharati Vidyapeeth College of Engineering [27] directed the College to refund the fees to complainant, who got admission in the Government College.

Again in case of Maharshi Dayanand University, Rohtak v/s Shakuntala Chaudhary,[28]it was held that, result of the examination declared by the University was erroneous and incorrect. The University defaults from its primal duty. The examinees would clearly be entitled to compensation under the Act for deficiency in the services rendered.

Recently, in Banglore University v/s Dattatri S.[29] the result declared by the University, in which mistake committed by the tabulator and candidate who secured sufficient marks for pass declared as fail. It was challenged and National Commission held that, imparting education, conduction examination, revaluation etc. not amount to service. Hence, complainant is not consumer and entitled to relief.

Financial services
Financial services rendered by the Financial Corporation is a service for which borrower pays interest, and is within meaning of the Act.[30]

Conclusion
While concluding this study, it is observed that present consumer movement has been developed tremendously. Constitutional object; justice, liberty and equality in the society sought to be achieved by this consumer movement. The commercialization in various sectors, particularly in degree or diploma from reputed education institutions is still awaited for justice.

The role of media also contributed lot in making awareness of public through advertisements like Jago Grahak Jago at the root level of the society. The philosophy of the justice as enshrined in the Constitution came to be true by this consumer movement in last 2-3 decades.
--------------------------------------------------------------------------------
[1] Common Cause a Registered Society v/s Union of India (1991) II CPR 523
[2]Chairman Thiruvollur Transport Coporation v/s The Consumer Protection Council I (1995) CPJ 3 (SC)
[3] M.N. Shukla : Law of Torts & Consumer Protection Act, 17 Edition, Reprint 2005, Pg. 24
[4] State of Karnataka v/s Vishwabharati House Bldg. Cooperative Society (2003) I CPJ 1(SC)
[5] Section 6 of the Consumer Protection Act, 1986
[6] II (1992) CPJ 439 (NC)
[7] AIR 1994 SC 787
[8] AIR 1994 SC 787
[9] I 2010 CPJ 525
[10] Consumer and Law Redressal of Grievances, S. Krishnamurthy, Vinod Law Publication, 2001, Pg.189
[11] AIR 1996 SC 550
[12] AIR 1969 SC 128
[13] AIR 1998 SC 1801
[14] 2010 CPJ 29 (SC)
[15] Indian Air Lines v/s S. N. Sinha (1) 1992 CPJ 62 (NC)
[16][16] 2003 (I) CPR 145 (NC)
[17] Joseph Zacharia v/s Joseph Kuriakose AIR 1992 Ker 103.
[18] 1992 (2) CPJ 352 (NC)
[19] AIR 2008 SCW 2147
[20] (1991) 1 CPR 23 (Raj)
[21] Murali Agro Products Ltd. v/s Oriental Insurance Co. Ltd. (2005) I CPJ 1 (NCDRC)
[22] 1992 (1) CPR 227
[23] II (1992) CPJ 508 (NC)
[24] AIR 1996 Mad. 427 (DB)
[25] Supra
[26] Unnikrishnan v/s State of Andhra Pradesh (1993) 1 SCC 645
[27] (1992) I CPJ 105 (Maha. CDRC)
[28] (1993) I CPR 274 (Haryana CDRC)
[29] I (2010) CPJ 111 (NC)
[30] Ravindra Kumar Das v/s Orissa State Financial Corporation Ltd. (1991) 1 CPR (Orissa CDRC)

Authors contact info - articles The  author can be reached at: nagnath_borphalkar@legalserviceindia.com




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Article Comments

Posted by bhagyashree chavan on May 17, 2010
nice article.keep it up.

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