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Torts - Consumer Protection Act, 1986
Torts - Consumer Protection Act, 1986
Torts - Consumer Protection Act, 1986
TORTS- II
SANA
WASIM
B.A. L.L.B. (HONS.)
IIND SEMESTER
Acknowledgement
I would like to express my heartfelt gratitude towards our Contracts professor
Dr. Eqbal Hussain for being a constant pillar of support and strength and
rendering us with invaluable information that assisted us in making of this
project.
CONSUMER
PROTECTION
ACT, 1986
Index
1. Introduction
2. Need for Consumer Protection
3. Objectives of the Consumer Protection Act
INTRODUCTION
The Consumer Protection Act, 1986 is a milestone in the history of socioeconomic legislation in India. It is one of the most progressive and
comprehensive regulations formulated to safeguard the interest of a small
consumer in the country. It was enacted after an in-depth study of consumer
protection laws in several countries, and in consultation with representatives of
Need for
consumer
protection
In order to maximise profits, many businessmen exploit consumers by
supplying poor quality goods at higher prices. They adopt unfair trade practices
such as adulteration, boarding, black-marketing, etc.
As a result consumers do not get value for their money. Big business houses use
their power for private gain and to the detriment of consumers. Consumers are
exposed to physical, environmental and other hazards.
OBJECTIVES OF
THE CONSUMER
PROTECTION
ACT
Relevant
provisions of
the act
Section 1(4)
SECTION 3
ACT Not in DEROGATION OF ANY OTHER LAW
The provision 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.
COMMENTS
The provision of the act are in addition and not in derogation
of the provisions of any other law for the time being in force.
Manifestly, provisions of the Act grant additional remedy to
the consumers but where the remedy itself is barred by some
provisions of some other act then the remedy which the
consumer prays cannot be granted by the various forums
constituted under the act
Important
definitions
Consumer of goods
1. Any person who buys any good for a consideration and
2. Includes any user of such goods with approval of the buyer
Consumer of Services
1. Any person which hires any services for a consideration
2. Includes any beneficiary of such services availed of with the approval of
the hirer.
Goods
The expression goods has been defined with reference to its definition under
the Sales Of Goods Act 1913
(1) The goods which form the subject of a contract of sale may be either
existing goods, owned or
possessed by the seller, or future goods.
(2) There may be a contract for the sale of goods the acquisition of which by the
seller depends upon
a contingency which may or may not happen.
(3) Where by a contract of sale the seller purports to effect a present sale of
future goods, the contract operates as an agreement to sell the goods.
SERVICES
Services means any description which is made available to potential user
There are two parts in sevices1. INCLUSIONARY PART
Services includes but not limited to the provision of facilities in connection with
banking, financing, insurance, transport, processing, supply of electrical, or
other energy, boarding or lodging or both, housing construction, entertainment,
amusement or purveying of news or other information.
2. EXCLUSIONARY PART
Service does not include
Consumer dispute
Where a person against who and whom a complaint made denies
allegation.
Complaint
Its means an allegation in writing as
Unfair/ restricted trade practices adopted by trader service
provider.
Goods bought suffer defect
Services hired suffered deficiency
Trader charges excessive price than fixed
CONSUMER LAW
PROTECTION IN
TORTS
In addition to the remedies under contract and criminal law, consumers have
rights under tort law. Based on its numerous legal intricacies, however, tort law
is not the ideal remedy for injured consumers in India. For example, the
traditional doctrine of negligence imposes heavy responsibility on the plaintiff
to prove each of its required elements. These traditional legal requirements
naturally encourage injured consumers to pursue legal remedies under different
laws.53 Not surprisingly, it is estimated that for about half a century from 1914
to 1965, only 613 tort cases came before the appellate courts.The orthodox legal
requirements under the law of torts and contracts forced the policy makers to
Consumerism
Consumerism is a movement or policies aimed at regulating the products or
services, methods or standards of manufacturers, sellers and advertisers in the
interest of buyers, such regulation maybe institutional, statutory or embodied in
a voluntary code occupied by a particular or it may result more indirectly from
the influence of consumer organisation. The principle of Caveat emptor
relieved the seller of the obligation to make disclosure about the quality of the
product. In addition, the personal relation between the buyer and the seller was
one of the major factors in their relations. But with the growth of trade and its
globalization the rule no more holds true. It is now impossible for the buyer to
examine the goods beforehand and most of the transactions are conclude by
correspondence. Further on account of complex structure of the modern goods,
it is only the producer/seller who can assure the quality of goods. With
manufacturing activity becoming more organized, the producers/sellers are
becoming stronger and organized whereas the buyers are still weak and
unorganized. In the age of revolutionized information technology, Internet and
with the emergence of e-commerce and m-commerce related innovations the
consumers are further deprived to a great extent. As a result buyer is being
misled, duped and deceived day in and day out.
Consumerism is in its infancy in our country, thanks to the sellers market and
the Government monopoly in most services. Consumer awareness is low due to
the apathy and lack of education among the masses. No one has told them about
their rights- to be informed about product quality, price, protection against
unsafe products, access to variety of goods at competitive prices, consumer
education etc. What consumers lack here are education and information
resources, testing facilities, competent leadership, price control mechanism, and
adequate quasi-judicial machinery. The providers of goods and services have
been reluctant to give due consideration to consumer interest protection.
Some business in India have come together to adopt a code of conduct for
regulating their own activities. Regulation of business through legislation is one
of the important means of protecting the consumers. Consumerism has over the
time developed into a sound force designed to aid and protect the consumer by
exerting legal, moral and economic pressure on producers and providers in
some of the developed countries. The success of consumerism lies in the
realization of the business that there is no substitute for voluntary selfregulations. Little attention from the business will not only serve consumers
interest but will also benefit them. The best possible solution is that the
Consumers must be aware of their rights, join voluntary Consumer
organizations, raise voice against exploitation and seek redress of their
grievances in time.
THE
PREVENTION
OF FOOD
ADULTERATION
ACT, 1954
INTRODUCTION
Food is one of the basic necessities for sustenance of life. Pure, fresh and
healthy diet is most essential for the health of the people. It is no wonder to say
that community health is national wealth.
Adulteration of food-stuffs was so rampant, widespread and persistent that
nothing short of a somewhat drastic remedy in the form of a comprehensive
legislation became the need of the hour. To check this kind of anti-social evil a
concerted and determined onslaught was launched by the Government by
introduction of the Prevention of Food Adulteration Bill in the Parliament to
herald an era of much needed hope and relief for the consumers at large.
Central legislation for the whole country in this matter has been felt since 1937
when a Committee appointed by the Central Advisory Board of Health
recommended this step. Adulteration of food-stuffs and other goods is now
included in the Concurrent List (III) in the Constitution of India. It has,
therefore, become possible for the Central Government to enact an all India
legislation on this subject. The Bill replaces all local food adulteration laws
where they exist and also applies to those States where there are no local laws
on the subject. Among others, it provides for
(i) a Central Food Laboratory to which food samples can be referred to for final
opinion in disputed cases (clause 4),
(ii) a Central Committee for Food Standards consisting of representatives of
Central and State Governments to advise on matters arising from the
administration of the Act (clause 3), and
(iii) the vesting in the Central Government of the rule-making power regarding
standards of quality for the articles of food and certain other matters (clause 22).
ACT 37 OF 1954
The Prevention of Food Adulteration Bill was passed by both the house of
Parliament and received the assent of the President on 29th September, 1954. It
came into force on Ist June, 1955 as THE PREVENTION OF FOOD
ADULTERATION ACT, 1954 (37 of 1954).
Drugs and
cosmetics Act,
1940
INTRODUCTION
In 1937 a Bill was introduced in the Central Legislative Assembly to give effect
to the recommendations of the Drugs Enquiry Committee to regulate the import
of drugs into British India. This Bill was referred to the Select Committee and
the Committee expressed the opinion that a more comprehensive measure for
the uniform control of manufacture and distribution of drugs as well as of
imports was desirable. The Central Government suggested to the Provincial
Governments to ask the Provincial Legislatures to pass resolutions empowering
the Central Legislature to pass on Act for regulating such matters relating to
control of drugs as fall within the Provincial sp here. Provincial Governments
got the resolution passed from the Provincial Legislatures and sent them to the
Central Government for getting through the Bill to regulate the import,
manufacture, distribution and sale of Drugs and Cosmetics. Thereupon the
Drugs and Cosmetics Bill was introduced in the Central Legislative Assembly.
falling within the Provincial Legislative field. For this reason it is not possible
to assign the power to fix standards and to make rules to any single authority. In
order to assure that before any action is taken due consideration is given to the
desirability of maintaining uniformity, provision has been made in Chapter VI
for a single Technical Advisory Board which both Central and Provincial
Government will be required to consult before modifying the standards set up
by the Bill or before making rules under the Bill.
ACT 23 OF 1940
The Drugs and Cosmetics Bill was passed by the Central Legislative Assembly
and it received the assent of the Governor General on 10th April, 1940 and thus
became the Drugs and Cosmetics Act, 1940 (23 of 1940).
LIST OF AMENDING ACTS AND ADAPTATION ORDERS
1. The Repealing and Amending Act, 1949 (40 of 1949).
2. The Adoption of Laws Order, 1950
3. The part B States (Laws) Act, 1951 (3 of 1951).
4. The Drugs (Amendment) Act, 1955 (11 of 1955).
5. The Drugs (Amendment) Act, 1960 (35 of 1960).
6. The Drugs (Amendment) Act, 1962 (21 of 1962).
7. The Drugs and Cosmetics (Amendment) Act, 1964 (13 of 1964).
8. The Drugs and Cosmetics (Amendment) Act, 1972 (19 of 1972).
9. The Drugs and Cosmetics (Amendment) Act, 1982 (68 of 1982).
10. The Drugs and Cosmetics (Amendment) Act, 1986 (71 of 1986).
CONSUMER
PROTECTION
COUNCIL
Central Consumer Protection Council
It is established by the Central Government which consists of the following
members:
The State Council is required to meet as and when necessary but not less than
two meetings every year.
OBJECTIVES
Objectives of Central Council
The objective of the Central Council is to promote and protect the rights of the
consumers such as:a) the right to be protected against the marketing of goods and services which
are hazardous to life and property.
b) the right to be informed about the quality, quantity, potency, purity,
standard and price of goods or services, as the case may be so as to protect the
consumer against unfair trade practices.
c) the right to be assured, wherever possible, access to a variety of goods and
services at competitive prices.
d) the right to be heard and to be assured that consumer's interests will receive
due consideration at appropriate forums.
e) the right to seek redressal against unfair trade practices or restrictive trade
practices or unscrupulous exploitation of consumers; and
f) the right to consumer education.
JURISDICTION
PECUNIARY JURISDICTION
Subject to the other provisions of this Act, the District Forum shall have
jurisdiction to
entertain complaints where the value of the goods or services and the
compensation, if any, claimed does not exceed rupees twenty lakhs.
b) TERRITORIAL JURISDICTION
A complaint shall be instituted in a District Forum within the local limits of
whose jurisdiction:a) the opposite party or each of the opposite parties, where there are more than
one, at the time of the institution of the complaint, actually and voluntarily
resides or carries on business or has a branch office or personally works for
gain, or
b) any of the opposite parties, where there are more than one, at the time of
the institution of the complaint, actually and voluntarily resides, or carries on
business or has a branch office, or personally works for gain, provided that in
such case either the permission of the District Forum is given, or the acquiesce
in such institution of the suit, of such of the opposite parties who do not reside,
or carry on business or have a branch office, or personally work for gain, as the
case may be, or
c) the cause of action, wholly or in part, arises.
1) Subject to the other provisions of this Act, the State Commission shall have
jurisdiction:a) to entertain
i) complaints where the value of the goods or services and compensation, if
any, claimed exceeds rupees twenty lakhs but does not exceed rupees onecrore;
and
ii) appeals against the orders of any District Forum within the State; 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 District Forum within the
State, where it appears to the State Commission that such District Forum 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) 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.
Remedies under
the Act
Remedies Granted Under Consumer Protection Act, 1986
The District Forum / State Commission / National Commission may pass one or
more of the following orders to grant relief to the aggrieved consumer :1. to remove the defects pointed out by the appropriate laboratory from goods in
question;
2. to replace the goods with new goods of similar description which shall be
free from any defect;
3. to return to the complainant the price, or, as the case may be, the charges paid
by the complainant;
4. to pay such amount as may be awarded by it as compensation to the
consumer for any loss or injury suffered by the consumer due to negligence of
the opposite party;
5. to remove the defects or deficiencies in the services in question;
6. to discontinue the unfair trade practice or the restrictive trade practice or not
to repeat them;
Appeal
Any person aggrieved by an order made by the District Forum may prefer an
appeal against such order to the State Commission within a period of thirty days
from the date of the order, in such form and manner as may be prescribed:
PROVIDED that the State Commission may entertain an appeal after the expiry
of the said period of thirty days if it is satisfied that there was sufficient cause
for not finding it within that period
Limitation period
1) The District Forum, the State Commission or the National Commission
shall not admit a complaint unless it is filed within two years from the date on
which the cause of action has arisen.
2) Notwithstanding anything contained in sub-section (1), a complaint may be
entertained after the period specified in sub-section (1), if the complainant
satisfies the District Forum, the State Commission or the National Commission,
as the case may be, that he had sufficient cause for not filing the complaint
within such period: Provided that no such complaint shall be entertained unless
the National Commission, the State Commission or the District Forum, as the
case may be, records its reasons for condoning such delay.
Penalties
Where a trader or a person against whom a complaint is made 2[or the
complainant] fails or omits to comply with any order made by the District
Forum, the State Commission or the National Commission, as the case may be,
such trader or person 2[or complainant] 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 two thousand rupees but which
may extend to ten thousand rupees, or with both:
PROVIDED that the District Forum, the State Commission or the National
Commission, as the case may be, may, if it is satisfied that the circumstances of
any case so require, impose a sentence of imprisonment or fine, or both, for a
term lesser than minimum term and the amount lesser than the minimum
amount, specified in this section.
References
1. Law of Torts- by R.K Bangia
2. www.indiankanoon.com
3. www.slideshare.net
4. www.consumersinternational.com