CONSUMER ADVISORIES

            CONSUMER PROTECTION ACT 1986 (AMENDED )2002                                       

Overview: The economic progress, Industrial growth and the accompanying developments in the international trade and commerce has resulted in a vast expansion of businesses all around. A huge variety of consumer goods and services have started appearing in the markets to cater  the ever increasing demand from consumers for not only products, but also services like housing ,banking, financing ,  Insurance ,Airlines ,Railways ,Education ,Carriage & Couriers , Transport, Electricity, Entertainment, Medical ,Hotels &Restaurants  etc.

Most of the queries referred to NCH relate to the provisions under the Consumer Protection Act and the referral of cases to the District Forums, State and National Commission. To provide speedy and simple redressal to consumer disputes, Quasi Judicial system is functional at District, State and National Level in the form of District Consumer Dispute Redressal Forums, State Consumer Dispute Redressal Commission and National Consumer Dispute Redressal Commission .These /Forums /Commission observe the principle of natural Justice for redressing the grievance of the consumers.

 Legal issues come into play in some form or the other in each sector .After amendment to the act in 2002, issue of unfair trade practice has got a wider scope to deal with the matters and specifically misleading advertisement appearing in print media as well as electronic media   day in and day out. Hence apart from defective goods and deficient services, consumers suffering from unfair trade practices while purchasing the goods and hiring services can also get their grievance redressed through these redressal agencies.

 Pecuniary Jurisdiction of Consumer Disputes Redressal Agencies in India 
• At District level--Limitation up to 20 lakh (About 621 forums functional all over the country)
• At State level—Limitation up to one crore (About 35 State Commissions functional all over the country)
• At National level—Matter above one crore (National Commission situated at Delhi)

Period for filing the complaint before consumer redressal agencies

·         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                             

Provided: - A complaint may be entertained after two years, 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.

Admission process under CP Act.

·         Consumer needs to register his complaint before the appropriate consumer forum as per the jurisdiction. Forum after going though the complaint call the complainant normally within a day or two for preliminary hearing wherein following things are decided

·         As to whether complainant is a consumer

·         Whether complaint has been filed within two years from the date of cause of action has arisen

·         Whether the forum /commission has the pecuniary as well as territorial jurisdiction to deal with the matter. 

           The process of admission is to be completed within 21 days from the date of registering the complaint before the redressal agency.

 

Transfer of the consumer case

 

The power to Transfer consumer case from one forum to another vests with the president of state commission of the state and from one state commission to another with the president of national commission at central level.

 

                                                             

                                                              GOODS

 

 

Standardization of goods  

              Though there is no compulsion for the manufactures to obtain standard certificate for the quality and standard of their products, Government has the policy under Bureau of Indian standard to obtain certificate for particular products and food items for health safety as specified by BIS. In case of failure on the part of manufacturers to the specific rules, they can be penalized as per law. Some of the important Government bodies working for standardization of the products are-

 

·         Bureau of Indian standards for various electrical goods and other number of items

·         Agricultural marketing department, govt. of India for cereals fats spices etc.

·         Silk mark organization ,a registered society sponsored by central silk board ministry of textiles ,Govt of India

·         Food safety and standards authority of India

·         Central Drug Standard Control Organization

 

E-Commerce

Information Technology Act, 2000 has done a big deal in giving recognition to online purchases. Reserve Bank of India  by issuing various circulars  regarding online banking and money transfer activities have made consumers  capable of securing  the online space. It’s true that as a whole, there are no specific laws that seek to protect consumers in the online space. However, that does not necessarily mean that the consumers are left without any recourse and in this regard we shall examine whether it is possible to use the Consumer Protection Act, 1986 to protect consumer rights in the online environment as well.

              While looking into the present frame work of Consumer Protection Act, we find enough scope to make use of this law with the same strength as is done purchases in physical presence with a little careful dealing.

 

·         Section 10A of the Information Technology Act, 2000 ("IT Act") provides validity to e-contracts                                 

·          In net purchasing, since proposal and acceptances are made on computer sitting at their places, jurisdiction at both the places has been considered by the forums /commissions under Consumer Protection Act as practiced by now and supported by various judgments too. Hence consumers can easily reach to consumer forums in cases of default on the part of seller or service provider

·         Advertising is an important and legitimate means for a seller to awaken interest in his products. Absence of a single comprehensive legislation in terms of a proper code to follow by the industry and the authority to regulate or guide the pattern of advertising is till date a problem. In 1985, the Advertising Standards Council of India ("ASCI"), a non statutory body, was established that created a self regulatory mechanism of ensuring ethical advertising practices. Amendment in the consumer protection act 2002 had added a clause unfair trade practice which is specifically meant for misleading ads and works well on e-commerce purchases also.  

While Consumer Protection Act 1986  is already on way to be amended suitably after earlier three amendments, Consumer is also bound to take adequate care while dealing with net and making purchases on line in his own interest .

·         To get information about the company:

·         Find out what the e-merchant's privacy policy

·         Keep your personal information private.

·         Shop only with known e-merchants

·         Review your monthly bank and credit card

 

 

 

            SERVICES

 

HOUSING

Issues

Late Possession, No Possession, Defective Dwelling, Area Less, Cost Escalation, Forfeiture Of Registration Fee In Case Of Cancellation Of Flat, Approach Road Dispute.

LAW LAID DOWN

!)Purchaser is a consumer against board/construction Company for services hired

  !!)Erring officer can be penalized with the payment of     compensation which is to be paid to the consumer

   !)Order for interest on the amount deposited should be on the basis of facts of the case and not always @18% as ordered by National commission.

    !!)If order for interest is given, there should not be any further order for compensation as both the things cannot go together

   !!!) In case where compensation for mental agony is given, there should not be any tax deduction at source as such compensation is not an income

!V) That where an auction is on ‘as is where is basis’ with reference to a public auction of the existing site ,the purchase /lessee is not a consumer ,the owner is not a service provider ”

V) Land owner, who enters into an agreement with a builder, for construction of an Apartment Building and for sharing of the constructed area, is a `consumer' entitled to maintain a complaint against the builder as a service-provider under the Consumer Protection Act, 1986.’

                                   

                                    MEDICAL PROFESSION

 

PRINCIPAL ADOPTED BY APEX COURT:

!)Though Indian Medical Council Act has to provisions to control the medical practitioners and take disciplinary action against erring doctors, consumer courts are additional remedy to the consumer under consumer protection act to get compensated.

!!)Though medical PROFESSION is different from other OCCUPATIONS, but commercialization has already taken place when services are given by payment though it is still a noble profession based on faith and trust.

!!!)Though medical profession is technical in nature but it cannot be said that the members of the forum are not capable to deal with such matters .They are equipped with expert opinions on the subject, medical literature and other reports, eminent people from the society, judges or retired judges. Three members can be expert of three subjects only and if it is expected them to know every subject, it will be an impossible situation in all the courts.

!v) Decisions in criminal case not found negligent do not affect cases under consumer protection act –gross negligence and intention to commit crime is the parameter in criminal cases.’

 

MEDICAL NEGLIGENCE

!) Damage to organ due to negligence

!!) Wrong treatment due to wrong diagnosis

!!!) Money receipt or prescription or discharge summery or test reports when not provided

!V) When treatment not chosen as accepted and established in medical norms /as per medical research/available medical literature.

V) Theory of res ipsa loquitur [a thing speaks of itself] - in case any instrument left in the body, a wrong part removed, allopathic treatment given by a homeopathic doctor etc.

V!) Govt Hospital liable if contribution from the employee’s salary deducted OR Payment made by insurance company

V!!))Negligent if three steps necessary are not observed by the medical practitioners

            First - To decide whether he has to take up the case or not:

            Second- If taken up the case, he is to decide what treatment is to be given.;

            Third- Whether the treatment given as per the diagnosis made.

V!!!)) Hospital can also be negligent ‘it is a case of non- availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty.

WHEN DOCTOR CANNOT BE HELD LIABLE

!X) If five methods available for treatment, one chosen, not negligent

X) Doctor not guarantor FOR HEALING OR CURING THE DISEASE

X!)Error of judgement differ from wrong diagnosis

 

                                                EDUCATION

            WHAT IS DEFICIENCY IN SERVICES                               

1.      Misleading ads stating the status of the institute as a recognized under some university is deficiency in services.

2.      Non –refund of fee

3.      Break or transfer of contract of services to other institutes

4.      Non commencement of course

5.      non availability of faculty

6.      Non availability of facility for which charged

7.      not providing study material

 

LAWS LAID DOWN ON EDUCATION

·         Giving misleading information about the institute, its status, recognition and affiliation amounts to unfair trade practice defined under the consumer protection act.

·         Collection of fee in advance for entire course i.e. for all the year not permissible ‘an educational institute can only charge prescribed fee for one semester/year if any institute feels that any particular student may leave in midstream[and the seat would lie vacant for the remaining years ] then at the highest it may require that student to give a bond /bank guarantee that the balance fees for the whole year shall be recovered from him even if the student left in the midstream’( Us mania  Islamic Academy Of Education V State Of Karnataka AIR 2003 Supreme Court 3724, Writ Petition (C) No. 350 Of 1993 decision on 14.08.2003by the bench comprising V N Khare C.J.I.S.N Variava ,K.G Balakrishnan) 

·         Receiving the fee without any service provided amounts to deficiency in services (Pie Solutions and Systems Ltd. versus Daya Shanker Mishra and ors. Hon’ble National Commission-2007)

·         Educational institutions cannot be permitted to behave like a business establishment who work with profit motive.  There was no justification on their part in retaining the substantial fee paid by a student who decides not to pursue his/her studies in the said institution. (Atam Parkash Khattar Vs. Commissioner & Secretary to Govt. of Haryana, Civil Writ Petition No.13308 of 2009 decided on 21.7.2010 by the Hon’ble High Court of Punjab and Haryana)

 

WHEN EDUCATION IS NOT SERVICE UNDER CP ACT

 

Statutary functions by the University and examination board are out from the jurisdiction of consumer forums such as -

·         Conducting examination ,fixing the dates for examination, changing the date sheet, appointing invigilators and paying them for the same ,allotment of roll number, checking the answer sheets and giving numbers  ,declaring the result ,setting criteria for giving admission to a particular course and giving admission or rejecting application etc

·         Students cannot say anything as to why such dates are fixed for the exams, or why this particular number is allotted or why results are not declared within expected period or why one is not given admission in particular stream when he /she did well in the interview

Administrative services;

·         For conducting the examination, if there is any deviation by the institute in the procedure set by the university without information, institute is carrying out administrative part and hence can be questioned because it has charged for these services.

·         If the rule is for the student to reach the examination center at 9.OO A.M, it is the discretion of the University to relax it for the reason given or not but not a right of the student.

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