SUBMITTED BY: RAHUL TAMBI

SM0119036

SUBJECT: CONSUMER PROTECTION LAW

 1. ANALYSIS OF THE CONSUMER PROTECTION ACT, 2019
Introduction
Consumer Protection Act,2019 replaces the Consumer Protection Act,1986 and is regarded as
a law to protect the interests of the consumers. This act was inevitable to resolve a large
number of pending consumer complaints in consumer courts across the country. It has ways
and means to solve the consumer grievances speedily. The basic aim of the Consumer
Protection Act, 2019 is to save the rights of the consumers by establishing authorities for
timely and effective administration and settlement of consumers’ disputes.

Key features of the Consumer Protection act, 2019

Establishment of Central Consumer Protection Authority:
The New Act proposes the formation of a regulatory body known as the Central Consumer
Protection Body (CCPA) with broad powers of regulation. The CCPA will have an
investigative arm, led by the Director-General, which can initiate an inquiry or investigation
into infringements of consumer law. CCPA has been given broad powers to take suo-moto
action, to recall products, to request refund of the price of goods or services, to revoke
licences and to file a class action suit, where a consumer complaint affects more than one
person.

Jurisdiction under the Consumer Protection Act, 2019:

The act has defined the criteria of Consumer Disputes Redressal Commission (CDRCs). The
National CDRC will hear complaints worth more than Rs. 10 crores. The State CDRC will
hear complaints when the value is more than Rs 1 crore but less than Rs 10 crore. While the
District CDRC will entertain complaints when the value of goods or service is up to Rs 1
crore.

Rights of consumers:
The act provides the following rights to the consumers:

 To be secured from the selling of life and property-threatening goods, products or

services.
 To be notified, as required, of nature, quantity, efficacy, consistency, value, and price
of goods, products or services, so as to protect the customer from unfair trading
practices.
 To be assured exposure to a range of commodities, products or services at fair rates
whenever possible.
  To be recognized and to be assured that the concerns of customers would be provided
due consideration at sufficient forum.
 To pursue relief from unfair commercial practices or unreasonable trading policies or
the unscrupulous exploitation of consumers.

Product Liability & Penal Consequences:

The New Act introduced the principle of product liability which covers, within its scope, the
supplier of the product, the service provider of the product and the purchaser of the product
for any claims for compensation. The term 'product seller' is interpreted to include a person
who is involved in placing the product for a commercial purpose and, as such, would also
include e-commerce platforms. The defence that e-commerce sites are simply 'platforms' or
'aggregators' will not be embraced. There are increased risk of liability for producers relative
to product service providers and product dealers, provided that under the New Act, producers
would be responsible for product liability acts even though they prove that they have not been
incompetent or dishonest in offering express warranty for a product. Certain exceptions to
liability charges have been made under the New Act, such as that the manufacturer of the
product would not be responsible if the product has been misused, changed or modified.

Alternate Dispute Resolution:

The law enables mediation as an alternate conflict settlement after the receipt of the
complaint or even at a later point of the complaint process by the District Commission. The
Act provides for a referral to Mediation within 5 days of receipt of the consent of the parties
to resolve the matter by alternative means. It would help to speed up the settlement of
conflicts and reduce the burden on consumer courts, which already have several lawsuits
before them.

If the mediation process fails to establish or resolve the problems between the parties, the
District Commission shall be allowed to take up the complaint for resolution in compliance
with the process laid down in the Act.

E-Filing of Complaints:
The New Act provides flexibility to the consumer to file complaints with the jurisdictional
consumer forum located at the place of residence or work of the consumer. This is unlike the
current practice of filing it at the place of purchase or where the seller has its registered office
address. The New Act also contains enabling provisions for consumers to file complaints
electronically and for hearing or examining parties through video conferencing. This is aimed
to provide procedural ease and reduce inconvenience and harassment for the consumers.

Food Safety and Standards Act, 2006:

The 2019 Act includes the definition of “food” as defined under the Food and Standards Act,
2006. This has replaced the definition of “goods” under the 1986 Act. This would help in
bringing the number of food delivery platforms to come under the ambit of consumer
protection.

Unfair Contracts:

A contract between the manufacturer / trader / service provider a consumer which causes
injury to the customer or a substantive improvement in the rights of the consumer is an unfair
contract. A unilateral termination of the contract without any prior information could be one
such example. For the same reason, up to 10 Crore INR and above 10 Crore INR may be
lodged in the State Commission and in the National Commission.

Penalties for Misleading Advertisement:

For a false or misleading advertising, the CCPA may impose a penalty of up to INR
1,000,000 (Indian Rupees One Million) on a producer or an endorser. They can also be
sentenced by the CCPA to up to 2 (two) years in prison for the same term. The fine can be
extended to INR 5,000,000 (Indian Rupees Five Million) and up to 5 (five) years
imprisonment in the event of a subsequent offence. The CCPA may also bar the endorser of a
misleading advertisement for a period of up to 1 (one) year from endorsing that particular
product or service. The term of prohibition may stretch to 3 (three) years for any subsequent
offence.

The New framework introduced endorsers' responsibility given that in the recent past there
have been several instances where customers have fallen victim to unfair trade practises
under the influence of celebrities posing as brand ambassadors. In such cases, to check the
veracity of the claims made in the advertising to refute liability claims, it becomes necessary
for the endorser to take the onus and practise due diligence. The new legislation requires the
respective governments to set up a National Commission for the Redress of Consumer
Disputes, a State Commission for the Redress of Consumer Disputes, and a Redressal
Commission for District Consumer Disputes. The position of these commissions established
under the New Act is comparable to that of the commissions established under the Old Act.
They have the ability to manage consumer complaints about such goods or services. The
SCDRC and the NCDRC are now allowed by the New Act to consider concerns about unfair
contracts.

Consumer Disputes Redressal Commission:

A consumer can file a complaint with CDRCs in relation to:

 Unfair or restrictive trade practices.

 Defective goods or services.
 Overcharging or deceptive charging.
 The offering of goods or services for sale which may be hazardous to life and safety.

Nevertheless, the pecuniary authority, i.e. the monetary value of the grievances which can be
pursued has been considerably expanded for each of these commissions to minimize the
pressure on the State and National Commissions by allowing customers to approach the
District Commission for grievances worth up to Rupees 1 Crore.

The 2019 Act provides for the right to judicial review, which would require consumer
commissions to review their decisions, thus reducing the burden exerted by selected petitions
to correct apparent inconsistencies in the record. It is now possible, in direct contrast to the
1986 Act, to make appeals to the National Commission from the State Commission, even
though they pose serious legal issues. The challenges raised by the National Commission to
the Supreme Court can only be raised against allegations which occur within the context of
the National Commission. Furthermore, in order to strengthen the noose on the early filing of
appeals, the timeframe for preferred appeals has now now been made more stringent. Only
the State can file lawsuits about an unjust contract, and the State CDRC will hear national
appeals from a district CDRC. The National CDRC will hear appeals from the State CDRC.
The Supreme Court will have the final appeal.

Conclusion:
The Consumer Protection Act, 2019 has widened the scope of the rights of the consumers, the
chain of goods and services as well as the modes of availing such goods and services. It has
modernised the legislation at par with the developments in the e-commerce industry as well
as the digitisation of the marketplace that the consumer is now exposed to. The Act is another
step toward the modernisation of the dated legislations of our democracy by implementation
of legislations that are better suited to the diverse and ever-changing socio-economic
dimensions of the modern world that could not have been anticipated by any stretch of
imagination by the drafters of these dated legislations. The real test for this Act remains in the
actual implementation of its provisions for encouraging and ensuring that the modern-day
consumer has a safeguarded and better standing against exploitation.

2. MEDICAL NEGLIGENCE AND RIGHTS OF CONSUMERS: A CRITICAL

LEGAL ANALYSIS

Introduction

A person engaged in some particular profession is supposed to have the requisite knowledge
and skill needed for the purpose and he has the duty to exercise reasonable degree of care in
the conduct of his duties. A patient approaching a doctor expects medical treatment with all
the knowledge and skill that the doctor possesses to bring relief to his medical problem. The
relationship takes the shape of a contract retaining the essential elements of tort. A doctor
owes certain duties to his patient and a breach of any of these duties gives a cause of action
for negligence against the doctor. The services of the doctors are covered under the
provisions of the Consumer Protection Act, 2019 and a patient can seek redressal of
grievances from the Consumer Courts.

Basic concept of Medical Negligence:

Negligence is a failure to do something that a rational man would do, driven by certain
considerations that normally govern the conduct of human affairs; to do something that a
cautious and rational man would not do. Medical negligence, with the latter being a wider
term, is a part of negligence. Medical negligence or medical malpractice includes
professional negligence due to an act or omission by a health care provider in which the
treatment he / she delivers falls below the three commonly accepted standards of practise in
the medical community and this treatment results in patient harm or death of the patient in
severe cases.

Medical negligence can be seen in various sectors in which due caution is not taken during
procedures, during diagnosis, during the child's birth, with anaesthesia problems, etc. Since
this domain is very broad, we will restrict ourselves to understanding the fundamental
principles that are necessary for the perpetration of negligence.
Components of Medical Negligence:

Winfield stated that a negligent act comprises of three main components. They are:
 Existence of legal duty.
 Breach of legal duty.
 Damage caused by the breach of the legal duty.
In order to understand the correct meaning of medical negligence it is essential that we
carefully analyse these components because only after we analyse these components will we
be able to understand the remedies that the law provides us.
1. Existence of legal duty:

Whenever a person approaches another person who trusts him or her to possess certain skills
or special knowledge of a particular problem, the second party is under an ambiguous legal
duty to exercise due diligence, as expected, at least in the manner expected by his or her
contemporaries in the regular course of business. It is not, however, that the legal
responsibility may only be contractual and not otherwise. Failure on the part of such a person
to do something that is the duty of the person, which would be just and fair equivalent to
negligence. Any time a patient visits a doctor for his or her illness, he or she does not enter
into any written contract, but there is a contract of involvement and any lack of proper
treatment may render the erring doctor liable for breach of professional duty.

2. Breach of legal duty:

There is certainly a breach of legal duty if the person exercising the skill does something
which an ordinary man would not have done or fails to do that which an ordinary prudent
man would have done in a similar situation. The standards are not supposed to be of very
high degree or otherwise, but just the relative kind, that is expected from a man in the
ordinary course of treatment.
3. Damages caused by the breach:

The wrong, the injury caused by such negligence is liable to be paid for in terms of money
and the courts apply well-established rules for the calculation of the exact amount liquidated.
We must remember that no hard and fast rule for universal application can be established.
While awarding compensation, the Consumer Forum must take into account all relevant
factors and assess compensation on the basis of the accepted principles of law on moderation.
It is for the consumer forum to decide whether the compensation granted is reasonable, fair
and appropriate in the light of the facts and circumstances of the case.

Rights of consumers in case of medical negligence:

A consumer is an individual who hires or makes use of any services for consideration paid or
pledged or partially paid and partially pledged or under any system of deferred payment and
includes any beneficiary of such services other than the individual who hires or makes use of
the services for consideration paid or pledged, or under any system of deferred payment,
where such services are made available to the consumer. This concept is broad enough to
include a patient who only promises to pay.

Deficiency of service:

Deficiency of service means any defect, imperfection, deficiency or inadequacy in the

quality, nature or manner of performance that is needed to be maintained by or under any law
for the time being in force or undertaken to be performed by a person pursuant to a contract
or otherwise in relation to any service.

Where to seek Redressal:

Consumer disputes redressal agencies which are popularly called as Consumer Forums or
Consumer Courts have been created under the act at national, state and district level. In India,
the COPRA, 2019 envisages three-tier grievance redressal mechanisms:

 National Consumers Dispute Redressal Commission.

 State Consumers Dispute Redressal Commission.
 District Consumer Disputes Redressal Commission.

There is a particular time limit provided for the disposal of cases under the Act. A notice is
sent to the respondent after the complaint is registered. The respondent compulsorily has to
reply within a time period of 45 days, failing which ex parte hearing can be held. An appeal
can be filed in the higher commission, within 30 days from the date of the decision.

Provision for appeal:

An appeal against the decision of the District Forum can be filed before the State
Commission. An appeal will then go from the State Commission to the National Commission
and from the National Commission to the Supreme Court. The time limit within which the
appeal should be filed is 30 days from the date of the decision in all cases.
Fee for Filing Complaint:

Any petition filed shall be followed by a nominal fee in the form of a cross-request drawn up
by a national bank or a cross-border Indian Postal Order drawn up in favour of the Registrar
of the State Commission and payable at the place where the State Commission or the
National Commission is headquartered.

Case to Be Referred to an Expert Body:

Wherever a consumer forum, whether it be a national, state, district or criminal court,

receives a complaint against a doctor, has to refer the matter to a qualified doctor or a medical
committee and confirm the allegations. Upon confirmation by the parties referred to above, if
it is prima facie proven that medical negligence has occurred, a letter can only be sent to the
doctor or to the hospital.

Trivial Litigation:

Section 26 has been provided to keep a check on the tendency of filing false and trivial or
petty complaints. Where the Consumer Disputes Redressal Forum is satisfied that the
complainant had approached the Forum without adequate justification, and frivolously, it
provides for the following actions to be taken:

 Dismissal of the frivolous and vexatious complaints.

 Orders while dismissing the complaint that the complainant shall compensate the
opposite party such costs, not surpassing ten thousand rupees, as may be specified in
the order.