Consumer Complaints Lodged Before 2019 Act Will Continue Before Fora Envisioned As Per 1986 Act: Supreme Court

Consumer Complaints Lodged Before 2019 Act Will Continue Before Fora Envisioned As Per 1986 Act: Supreme Court

Consumer Complaints Lodged Before 2019 Act Will Continue Before Fora Envisioned As Per 1986 Act: Supreme Court

The bench of Justices Dr. DY Chandrachud. and MR Shah held that the proceedings instituted before the commencement of the Consumer Protection Act 2019 on 20 July 2020 would continue before the fora corresponding to those under the Consumer Protection Act 1986 (the National Commission, State Commissions and District Commissions) and not be transferred in terms of the pecuniary jurisdiction set for the fora established under the Act of 2019. 

The decision was rendered by the Bench on 16th of March, 2020, in a plea against a decision of the National Consumer Disputes Redressal Commission (NCDRC) which had dismissed a case on the ground that after the enforcement of the 2019 Act, its pecuniary jurisdiction stood enhanced from Rs 1 crore to Rs 10 crore. The Apex Court ruled that transferring these complaints as per the pecuniary jurisdiction laid down in the new Act will impact the interests of the consumer and defeat the object of the legislation, which is to protect and promote consumer welfare. 

This significant pronouncement, which settles a widespread confusion prevailing in consumer fora across the country, came in the case Neena Aneja and others vs Jai Prakash Associates Ltd.

The 2019 Act had increased the pecuniary jurisdiction of consumer fora as follows :

District Forum :-Increased to Rs.One Crore from Rs. Twenty Lakhs.

State Commission :- Increased to Rs. Ten Crores from Rs. One Crore.

National Commission :- Above Rs. Ten Crores from Rs.One Crores.

Click here to read the full judgement

Six Positive Changes in New Consumer Protection Law Passed in Lok Sabha – An Analysis by Prof Sri Ram Khanna & Consumer Voice Team

Six Positive Changes in New Consumer Protection Law Passed in Lok Sabha – An Analysis by Prof Sri Ram Khanna & Consumer Voice Team

On Thursday, 20 December 2018 The Consumers Protection Bill, 2018 was passed just before the house was adjourned for the day amid noisy disruptions. It was the first Bill to be introduced in  2018 budget session of Lok Sabha after it passed the legislative deliberations test in the Parliamentary Standing Committee. In 2016 the parliamentary Standing Committee had examined the earlier version of Consumers Protection Bill, 2015 and made its recommendations which have taken over a year to process. The first version of the Bill had been finalized during UPA II.

WHAT ARE THE SIX POSITIVE CHANGES?

The changes in the existing Act of 1986 are mostly positive. We have identified six positive features in the 2018 Bill which seeks to repeal and replace the 1986 Act lock stock and barrel. These include: First setting up of a new Executive Regulatory Authority called Central Consumers Protection Authority (CCPA) specialized to protect consumers. Second, it sets up a Mediation Cell in each consumer Court to mediate on consumer disputes. Thirdly, it widens the geographical jurisdiction of a consumer court to include the home or workplace of the complainant and substantially enhances pecuniary jurisdiction of consumer courts at all three levels. Fourth, it introduces the concept of Unfair terms of Contract which can be nullified by a Consumer Court. Fifth, it introduces punishment to jail and fine for misleading ads and injury from adulteration and spurious goods. Sixth, it introduces the concept of Product liability action widening the jurisdiction of the consumer courts. These positive changes need to be welcomed and appear to be like the warmth of the winter sun on a chilly, cloudy day in North India.

The Six positive issues that constitute the sunshine hiding behind the dark clouds on a winter morning are explained

Setting up of a Central Consumer protection Authority:
The Bill establishes a Consumer Protection Authority to investigate into consumer complaints, issue safety notices for goods and services, and pass orders for recall of goods and against misleading advertisements. It provides teeth to this Bill where the Authority can intervene to protect consumer’s interest in the market place. While the present law has provisions enabling the Central and State Governments to file cases in Consumer Courts, hardly any such cases have been filed in last three decades. This authority will be able to intervene in the market in a wide number of situations which have been elaborated in the BILL. It’s likely to emerge as a Regulatory Body for Consumers Protection.

Setting up of Mediation Centres in Consumer Courts:
A new chapter has been added to the Bill relating to setting up the mechanism for undertaking mediation in consumer disputes. The philosophy is that willing parties to a dispute should discuss the dispute with an empanelled Mediator to find a mutually acceptable solution to the dispute instead of long drawn litigation. Mediation Centres would be set up at the Central, State and District levels prescribed by respective state and central governments. This would enable settlement of disputes by a mediator upon reference by a consumer court.

Widening the jurisdiction of Consumer Courts:
The existing principle of jurisdiction of a District consumer court is the place where the cause of action arose or where the branch of the opposite party is located. This point is settled by the Supreme Court which held in Sonic Surgical (CIVIL APPEAL NO. 1560 OF 2004) that the case should be filed only in the jurisdiction of the branch office where the cause of action arose. The complaint cannot be filed in any branch of the opposite party. The proposed Section 34(1) raises the jurisdiction of District Consumer Court from existing Rs. 20 lacs to Rs. one crore. The proposed Section 34 (2) (d) adds the place where the complainant resides or personally works for gain as another place where the complaint can be filed. This welcome change completely upsets the ratio decendi in the Sonic Surgical case which is frequently being cited by Consumer Courts to oust geographic jurisdiction in cases where the cause of action arose at another place. The pecuniary jurisdiction of the State Commissions has been enhanced from Rs. 20 lacs and it goes up from one crore to Rs 10 crores and that of the National Commission to over Rs 10 crores.

Unfair Terms of Contract:
All contracts in India have been judged on the basis of jurisprudence based on The Indian Contract Act of 1872. For nearly 146 years Indian courts have upheld the validity of all terms of contracts if the contract was validly entered and have refused to judge the reasonableness of terms of contracts once parties have bound themselves to such contracts. The major exception being contracts in which minors were parties or the object of the contract was against public purpose or policy. The Bill classifies six contract terms as ‘unfair’. These cover terms such as (i) payment of excessive security deposits; (ii) disproportionate penalty for a breach; (iii) refusal to accept early repayment of debts; (iv) unilateral termination without reasonable cause; (v) causing consumer detriment by assigning a contract to another party; (vi) one which puts the consumer at a disadvantage. The Parliamentary Standing committee had recommended that the Bill should lay down principles which widen its scope to determine whether contract term is unfair. This would allow terms of contracts other than the specified six to be classified as unfair. The change in the opening para of Section 2(46) does not appear to do justice to this recommendation and could have been better worded to widen it meaningfully. Only State Commissions and National Commission are being empowered to declare such terms of contracts as null and void. This will certainly reverse the current trend of contractual jurisprudence in B to C transactions and is to be welcomed by consumers.

Jail for false and misleading ads, sale of spurious products and adulterated food:
Though the 1986 Act has adequate provisions for action against misleading ads which are deemed to be unfair trade practices, the act has been described as toothless as there was no penalty against such advertisers. The Bill has dropped the earlier proposal to penalize celebrities endorsing misleading ads. Under Section 89 two years jail and fine of Rs. 10 lacs is prescribed for misleading ads. The term of jail and fine are enhanced to five years and Rs. 50 lacs in case of a repeat offence. The Parliamentary Standing Committee had suggested a fine of Rs. 10 lakh or an imprisonment of two years or both, to deter such advertisements. It also suggested that these penalties will be applicable to the persons who endorse the products in the advertisements. The Bill does not have any such provision against the endorsing celebrity. Though the celebrities on their parts may be forced to do due diligence about the features of the product they are promoting. The proposed Section 90 prescribes jail for sale of adulterated food while Section 91 provides for jail for sale of spurious goods.

Product Liability:
A new chapter has been introduced in the Bill to enforce product liability against manufacturers and even make them recall the product from the entire market. The 2015 Bill proposed that in order to enforce product liability, a claimant must establish four kinds of defects in the product, the injury caused from it, and that it belonged to the manufacturer. The claimant must also establish that the manufacturer had knowledge of such a defect. It was argued before the Standing Committee that the conditions to establish a product liability claim are unreasonable. The Parliamentary Standing Committee observed that this puts an undue burden on the consumer, since it would not be possible to claim liability if any one of the conditions are not met. It recommended that the provision be redrafted such that the consumer has to prove any one of the conditions instead of all six of them. The Committee also noted that it was not clear if deficiency in services is covered under the Bill. It recommended that the Bill should also specify conditions for establishing deficiency in services.

SOME DEFICIENCIES REMAIN AS A DARK CLOUD HIDING THE SUNSHINE

However, these welcome changes are being overshadowed by the dark clouds of deleting existing due process sections of establishing consumer court judges that is like hiding warm sunshine on a chilly winter morning. The new Bill has dropped the due process for appointments of consumer court judges which is based on a political consensus contained in CPA, 1986. It’s like a damner on an otherwise welcome bill with six positive additions to the existing Consumer Protection Law. The now missing listing of qualifications, criteria for selections, selection committee composition and terms of office of consumer court judges which are part of the existing law have been dropped and demoted to rule making as delegated legislation. Rules are also law and are made by a Ministry without any open consultation process and notified by Government in the official Gazette. This dropping opens the door for changes that have the potential to introduce arbitrariness, favoritism and selection of unqualified persons close to the ruling dispensation. The unpleasant topping on this cake is the dark cloud dropping the formal role of High Court Chief Justices in mandatory consultation for appointment of judicial officers as heads of State Commissions and Chief Justice of India in appointment of president of National Commission. The existing provisions of Chief justices heading selection committees to pick consumer court judges have also been dropped. This is not welcome particularly because the smallest consumer court will handle cases up to value of Rs one crore in a case.

SUGGESTION FROM CONSUMER VOICEConsumer VOICE suggests retaining the following sections of 1986 act in current bill:

COURTS QUALIFICATION OF MEMBERS SELECTION COMMITTEE COMPOSITION TERM & APPOINTMENT
DISTRICT FORUM       10(1)    10(1)(A)    10 (2)(3)
STATE COMMISSIONS       16(1)    16(1)(A)   16 (2), (3)
NATIONAL COMMISSION       20(1)    20(1) (A)   20(2), (3)

These six positive highlights are going to make this law much stronger, mature and sophisticated as compared to the Bill first passed in 1986 and thrice amended.  One can say that much water has flown down the Yamuna since 1986 when this law was first enacted. The Consumers protection Bill 2018 will replace the old Act of 1986 lock stock and barrel while retaining all essential features but making significant change and additions to make it stronger to protect consumers.

Prof Sri Ram Khanna is managing editor of Consumer Voice and former Dean and head of Commerce, Delhi School of Economics

Also Read: Consumer Protection Bill 2018 | Consumer Protection Act 1986

Indian Consumers: Arise, Awake To Urge Adaption Of Consumer Protection Bill

Indian Consumers: Arise, Awake To Urge Adaption Of Consumer Protection Bill

No need to pay extra for bottled water at cinemas, malls and airports: Ram Vilas Paswan

Packaged Drinking Water

By Bhamy V. Shenoy

Consumer Protection Bill (CPB) 2018 was passed by the Lok Sabha on Dec 20th, 2018. Actually this bill was tabled in 2015. However Rajya Sabha did not pass the bill and the new Parliament has to take this up after the election.

CPB was not at all controversial. All political parties would have been interested to support the long suffering consumers if only they realized that their voters demand from them a robust act to protect their rights. After all all voters are consumers in one way or the other. But it did not happen. New bill had several consumer friendly provisions. It would have established a Central Consumer Protection Authority to protect consumer rights and to look into misleading advertisements, had provisions to fine and ban on celebrities for endorsing misleading advertisements, would have encouraged alternate dispute litigation mechanisms etc.

Consumer Voice, a well known Delhi based consumer protection NGO has started a petition to urge all the political parties to pass the consumer protection bill (CPB 2018) when the new Parliament meets after the election. CV publishes a monthly magazine to inform the consumers of the comparative testing of products and services. Such information is invaluable for consumers and not to be misled by all kinds of ads.

Unless we the citizens show interest, new parliament irrespective of which combination of parties come to rule is unlikely to take this bill on a priority basis. What a shame that even after passage of four long years, we have failed to have a progressive consumer protection act to replace the one of 1986.  This is mostly because of consumer indifference.

Some efforts have been made in the past to get signatures for petition like this, but none achieved the critical mass of at least one lakh signatures ( even one lakh is not much to speak of in a society where crores are active on the social network).

Some may argue what is the use of passing another law when the previous law has not really helped the consumers as expected. Consumer courts established  under previous law have adapted the dysfunctional culture of general courts giving never ending adjournments and has failed to uphold the spirit of giving judgements with no or minimum adjournment in 90 days. This is mostly because we the citizens have failed in our responsibility of putting pressure on the government to implement the law properly. Hopefully the new consumer movement which is now being promoted by some NGOs to push the political parties to adapt a more progressive act may make a difference.

We all talk of how social network plays an important role. Can anything be more important than helping the consumers who face problems every day while buying goods and services either from the public or private sectors? If we the citizens take interest, we should be able to get at least a million signatures to the petition. It will definitely make a difference. Link to sign to petition is at   http://chng.it/LfD68DFn.  Soon after reading the article, do not postpone to sign it. It takes less than a minute. Let us get inspired by Swami Vivekananda’s words, “Arise, awake and stop not till the goal is reached”. Our goal is to get millions to sign the petition to convince all the political leaders to put consumer protection on their manifesto.

Bhamy V. Shenoy is a governing council member of Consumer Voice.

Related

Did you know that your health information is confidential?

Did you know that your health information is confidential?

health

Whenever a doctor cannot do good, he must be kept from doing harm.

~ Hippocrates

In August this year, Andhra Pradesh State Consumer Disputes Redressal Commission had warned doctors and hospitals to not share patient information with anyone unless required by a court of law. Warning of legal consequences if they acted contrary to this, the commission had also stated that ‘maintaining confidentiality of a patient’s medical aspects is absolutely necessary and that it is not only part of a doctor’s professional conduct, but also a Constitutional obligation.’ Let’s look at some of the cases that brought this contentious subject into the spotlight.

 Dr Prem Lata, Consumer Awakening

Former Member, CDRF-Delhi

The case in question was against State Bank of India (SBI) wherein the latter had rejected a request of settling a loan against policy claim. The judgement was arrived at on the basis of ‘unethically obtained’ medical information by SBI.

A two-member bench comprising Justice Noushad Ali (president) and P Mutyala Naidu had allowed the claim of G Vijaya Kumari of Vijayawada against SBI Life Insurance Company.  The bench observed: “It is trite to note that of late, almost every doctor/hospital is observing a professional obligation and the mandate of Constitution with impunity. They are sharing medical records of patients routinely with insurance companies, without realising consequences.”

Case Background

G Vijaya Kumari had filed a case against SBI Life Insurance Company as they had rejected her request for settlement of a home loan (from SBI itself) through the insurance claim that was due to her after her husband’s demise. The insurance company had rejected her claim on the basis of investigation wherein they claimed to have found out that the applicant had ‘suppressed material information’ at the time of obtaining the life-insurance policy.

Kumari’s husband Seshagiri Rao had borrowed Rs 22 lakh as housing loan from SBI and covered the loan with the same bank’s insurance policy. He had also mortgaged his property. Later, Rao was diagnosed with cancer and died. Distressed, his wife pleaded with the bank to settle the loan against the insurance claim and return the pledged property papers to her. However, her claim was rejected by the company on the grounds that Rao had not disclosed true facts while buying the insurance policy.

It is interesting to note that the insurance company, despite maintaining in its records that Rao had suppressed material information, had issued a certificate of good health to him and approved the insurance policy.

After thoroughly studying the case and hearing all the parties, the state commission observed that while selling policies the insurance companies did not really care as to whether or not the intending purchaser was eligible for the policy – whether he or she was concealing ‘material information’, as was being contended in this case. Instead, they surpassed basic rules, lured customers through advertising and agents to meet sales targets. When it came to settlement, they would look for every possible excuse to dismiss the same. The bench pointed out that the insurance companies invariably engaged their so-called investigators, who in turn approached doctors/hospitals for records. “These doctors/hospitals are obliging to them as a matter of course. The present case is one such instance,” the bench said.

It its final judgement, the commission not just directed SBI to settle the loan against the policy claim and return the pledged property documents, but also asked the bank to compensate Kumari with one lakh rupees and pay Rs 25,000 towards the cost of litigation. The commission also reprimanded doctors/hospitals for sharing patients’ personal information with commercial establishments and asked them all to adhere to the regulations of Medical Council of India (MCI).

Another Case

An interesting case was decided by the National Consumer Forum in February this year. Life Insurance Corporation of India (LIC) had rejected a claim requested by the kin of PR Sumanagala post his death, on the basis of his medical records and a medical attendant’s certificate.

LIC rejected the claim stating that “the insured was a diabetic patient for the past 15 years and was undergoing irregular treatment.” To justify their claim, the company produced a discharge summary and the treatment records supplied by the Holy Ghost Mission Hospital where Sumanagala had died. They also produced a medical attendant’s certificate that confirmed acute renal failure as secondary cause of death and long-standing diabetes as the primary cause. On the other hand, Sumanagala’s wife continued to insist that her husband was totally healthy when he had taken the policy and that they learnt about his condition only after he was admitted to the hospital.

Interestingly, the company could not produce any evidence – treatment records, doctor’s statement, prescription or diagnosis – that could prove that the insured was getting treatment (even if irregular) for diabetes prior to his admission at the hospital. They could not counter the fact that kidney failure could be due to many reasons and that it was not possible to diagnose the time when kidney deterioration might have started.

All allegations by the insurance company were later proved wrong when the attorney cross-examined the doctor who had signed the medical attendant’s certificate. He accepted that he had not treated the patient and it was recorded that he was diabetic on the basis of symptoms of the patient. He also admitted that kidney failure could be due to many causes other than diabetes – there was no test available to determine the duration of diabetes. In fact, the old health records of Sumanagala that were obtained from a government medical college did not mention anything about him being a diabetes or hypertensive patient.

Announcing the final verdict, the commission reprimanded the insurance company and asked it to settle the claim.

Reiterating the above judgement in another case wherein Life Insurance Corporation had been sued by Dr PS Aggarwal, the Supreme Court had stated: “The onus to prove that there was material concealment of any disease, which directly proved fatal, was on the insurance company. In addition to above, the petitioner was supposed to prove that at the time of taking policy the person who gave the information knew about such a disease and he withheld it with an intention to defraud the insurance company.”

Likewise, in the case of Life Insurance Corporation versus Asha Goel, the National Commission had stated that “the burden of proving that the insured had made false representations or had suppressed material facts is on the Corporation.”

Stating the position of law, the National Commission explained that ‘exclusion clause’ could be applied by the court if insurer could prove the case of ‘pre-existing disease’. For that, the insurer must justify three elements:

(a) the policyholder suppressed facts which were material to disclose;

(b) the suppression must be fraudulently made by the policyholder; and

(c) the policyholder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.

One must note here that Pollock and Mulla’s Indian Contract and Specific Relief Acts states that “any fact the knowledge or ignorance of which would materially influence an insurer in making the contract or in estimating the degree and character of risks in fixing the rate of premium is a material fact.”

Consumers, Be Aware

Although the above judgements and interventions are encouraging and have favoured distressed consumers, one should always be conscious when buying insurance and avoid any possibility of dismissal of insurance claim, by filling in correct details about health, history of illnesses in the family, and occupation and income.

Details of health: Insurance proposers tend to avoid filling in details regarding health conditions fearing that information on any ailment may result in the insurer rejecting the contract or asking for a higher premium. It must be understood that insurance companies do not deny any scope for insurance to those afflicted with specific diseases or health troubles.

History of illnesses in the family: Details of correct age along with health details of family members are important owing to the hereditary nature of certain diseases. Two or more people in the family succumbing to some specific illness that may be genetic in nature or exhibiting suicidal tendencies indicates a higher risk of death of those insured, and hence attract higher premiums.

Occupation and income: The maximum life cover allowed by any insurance company depends on the level of income, thus requiring the insured to provide right details of his/her income. Authenticity of income details may be determined by submission of last pay slip along with the income tax return (ITR) filed. For those employed in risky occupations including aviation, army, police, defence services or mining jobs, giving information about the nature of job is especially important as the underwriting criteria decided by the insurer require an added load to the premium paid.

Taking a life-insurance policy is a way to show your loved ones that you care. Since the process involves underwriting a legal contract, it is necessary that extreme caution is taken while filling out the form. This will ensure timely and complete payment of the claim to the nominee.

 

Related

Pecuniary Jurisdiction under Consumer Protection Act, 2019

Pecuniary Jurisdiction under Consumer Protection Act, 2019

The National Consumer Disputes Redressal Commission (NCDRC) in M/S Pyaridevi Chabiraj Steels Pvt. Ltd. V. National Insurance Company Ltd. & Ors. [Consumer Case No. 833 of 2020]  held that for determining the pecuniary jurisdiction of the Consumer for a and the value of the goods “paid” as consideration has to be taken and not the value of goods or services “purchased”. It was observed by the court that the case being governed under the Consumer Protection Act, 1986, NCDRC would have jurisdiction in the matter since pecuniary jurisdiction thereunder was determined by taking the “value of the goods or services and compensation”. Meaning thereby that the value of the goods or services as also the compensation would be added to arrive at a conclusion as to whether the National Commission has the jurisdiction or not.  It was further observed by the court that under the new law, the NCDRC has jurisdiction to entertain complaints where the “value of the goods or services paid” as consideration exceeds R. 10,00,00,000.

It was held that, “It appears that the Parliament, while enacting the Act of 2019 was conscious of this fact and to ensure that Consumer should approach the appropriate Consumer Disputes Redressal Commission whether it is District, State or National only the value of the consideration paid should be taken into consideration while determining the pecuniary jurisdiction and not value of the goods or services and compensation, and that is why a specific provision has been made in Sections 34 (1), 47 (1) (a) (i) and 58 (1) (a) (i) providing for the pecuniary jurisdiction of the District Consumer Disputes Redressal Commission, State Consumer Disputes Redressal Commission and the National Commission respectively.”

To learn more about the case, get a copy of our digital magazine today!

5 Positive Key Features in Consumer Protection Act, 2019

5 Positive Key Features in Consumer Protection Act, 2019

5 Positive Key Features in Consumer Protection Act, 2019

The old Consumer Protection Act of 1986 has been repealed and replaced lock stock and barrel with the new law passed by the Parliament in 2019. The new law has come into effect from 20th July, 2020 ushering in many new changes. The five positive changes that have replaced the three-decade old Consumer Protection Act 1986 are:

Penalty for misleading advertisement

There have been numerous instances in the past where consumers have been victims of unfair trade practices. This Act addresses the menace of adulteration, by making manufacture, sale, storage of products mixed with adulterants punishable offences. The Act also states punishment for manufacturing for sale or for storing or selling or distributing or importing of spurious goods. A consumer may be imposed with a fine of up to INR 1,000,000 (One million rupees) on a manufacturer or an endorser, for a false or misleading advertisement and imprisonment for up to two years for a false or misleading advertisement

Product Liability

The new Act introduced the key concept of ‘product liability’, wherein action may be brought in against a product manufacturer, product service provider or product seller for any harm caused to the complainant on account of a defective product. It includes the seller who places an item for commercial purposes on the e-commerce platform as well.

Unfair Terms of Contract

For nearly 147 years Indian courts have upheld the validity of all terms of contracts if the contract was validly entered and have refused to judge the reasonableness of terms of contracts once parties have bound themselves to such contracts. However, the new Act classifies six contract terms as ‘unfair’. These cover terms such as

  1.  payment of excessive security deposits;
  2. disproportionate penalty for a breach;
  3. refusal to accept early repayment of debts;
  4. unilateral termination without reasonable cause;
  5. causing consumer detriment by assigning a contract to another party;
  6. one which puts the consumer at a disadvantage.

Widening of Jurisdiction of Consumer Courts

A big relief that this Act gives is the widening of jurisdiction of consumer courts. So, if your residential place is outside your cause of action, you can still file the case in your native place. The new Act raises the jurisdiction of District Consumer Court from existing Rs. twenty lacs to Rs. one crore, while State Commissions enhanced from can go beyond Rs 1 crore and the National Commission to over Rs 10 crores.

Setting up of Mediation Centres

The idea behind setting up of Mediation Centres is that willing parties in a dispute should discuss the dispute with an empanelled Mediator to find a mutually acceptable solution. Mediation Centers would be set up at the Central, State and District levels prescribed by respective state and central governments.

So, with the advent of this new Act, consumers are now the king!