During a significant hearing on February 22, 2024, pertaining to the case of the Advocates Association, involving the Bar of Indian Lawyers represented by its President Jasbir Singh Malik versus D.K. Gandhi Ps National Institute of Communicable Diseases (Diary No. 27751 – 2007), the Supreme Court posed inquiries to the advocates representing the Bar Association.

“Why Can’t Client Be ‘Consumer’ & Lawyer’s Negligence Be ‘Deficiency of Service’ Under Consumer Protection Act?”

The Senior Counsel responded, stating that the client, in this context, is the recipient of the service, not in a commercial or trade capacity  

Dr Prem Lata Legal Head VOICE

During the hearing of an appeal against a case lingering for 17 years, the Supreme Court, which had previously stayed an order issued by the National Commission in 2007, raised several queries. The advocate representing the Bar of Indian Lawyers asserted that lawyers choose this profession for its noble character, highlighting its role in the judicial dispensation process. The advocate emphasized the fiduciary nature of the lawyer-client relationship, comparing it to a trustee relationship where trust and faith are pivotal.

The Supreme Court posed an additional query: In instances of service deficiency or negligence leading to loss for the litigant, is it possible to sue the lawyer for damages?

The counsel responded affirmatively, stating that indeed, in such cases, the litigant can pursue legal action for damages, specifically within a civil court.

Justice Mithal inquired further, questioning whether the authority of the civil court, despite the Bar Council handling misconduct cases, could be delegated to a specialized court.

The advocate for the Bar Associations explains that there are two approaches to the issue:

• The Bar Council has the power to impose the costs under the Act itself. Bar council does that in appropriate cases.
• The advocate for the Bar Associations elucidates that when considering the jurisdiction of a civil court, it entails a general principle in law. Several inherent problems arise within this framework, rendering it incompatible and unjustified if consumer commissions are allowed to function akin to civil courts.

Background of the Case

In reference to a case decided by the National Commission back in 2007, wherein the matter of D.K. Gandhi v M. Mathias (2007 CTJ 909 (CP)NCDRC) was addressed, it was ruled that services provided by an advocate to a client during litigation fall under the purview of the Consumer Protection Act. Following this decision, various advocate bodies, including the Bar of Indian Lawyers, Delhi High Court Bar Association, and Bar Council of India, approached the Hon’ble Supreme Court. The Supreme Court, led by Justice L.S. Panta and Justice B. Sudarshan Reddy, intervened and stayed the judgment of the apex consumer commission, asserting that lawyers offer legal assistance rather than a service to their clients.

This case has traversed through various levels, beginning at the consumer forum and reaching the State Commission in Delhi. On March 10, 2006, the State Commission ruled that advocates would not fall under the purview of consumer forums. In response, the aggrieved consumer filed a revision petition before the National Commission, which extensively examined the matter, citing numerous judgments related to services provided by professionals.

Acknowledging the nobility of the legal profession, reference was made to the case of Indian Medical Association v V. Shantha (1995 CTJ 969 SC), where the terms “profession” and “occupation” were extensively discussed. It was agreed that success in every case is not guaranteed for professionals, such as doctors, and if a medical professional cannot cure a disease, it does not imply deficient services under the Consumer Protection Act. However, the services rendered are recognized under the Act, highlighting the noble and life-saving nature of the medical profession.

Similar arguments were presented in the case of M.K. Gandhi, and a precedent was found in the matter of Srimathi v Union of India (AIR 1996 Mad 427), emphasizing that although advocates are governed by statutory enactments and rules, there is no provision enabling the bar council to address disputes between advocates and clients, including compensation for damages and refunds.

The National Commission also referred to the case of K. Vishnu v National Consumer Dispute Redressal Commission in 2000, asserting that, despite advocates being officers of the court, they cannot be exempted from their fundamental role of providing services to their clients in exchange for consideration. Additionally, the National Commission cited Mathew Jackob v State of Punjab (2005 CTJ 1085 SC), where the Apex court affirmed that, in the law of negligence, professionals such as lawyers may be held liable for negligence due to their specialized skills.

The Apex court is currently reviewing the case on its merits, marking the culmination of a nearly 17-year-long legal journey. The issues under discussion hold significant interest for consumers, especially considering that, over time, various professionals have been brought within the purview of Consumer Commissions through Supreme Court pronouncements.

The National Commission’s 2007 judgment is particularly noteworthy, characterized by its thorough and reasoned approach. It extensively referenced key excerpts from earlier Supreme Court judgments. The questions now presented before the Apex court are not novel; they were comprehensively addressed in the National Commission’s order, indicating a continuity in the legal arguments and considerations surrounding this case.

With the case emerging from a 17-year hiatus and finally coming under scrutiny, there is optimism among consumers for a favourable outcome from the Apex court. As the Supreme Court deliberates on the merits of the case, I will keep the readers informed and provide updates once a decision is reached

Question 1. I made a purchase with a total value of Rs 7983 on November 30, 2023. Despite Flipkart confirming delivery on December 25, 2023, I never received the product. Can I lodge a First Information Report (FIR) against Flipkart for their service deficiency in dispatching an incorrect item in my order? (Deepak)

Answer: The Allahabad High Court has quashed the FIR filed against Flipkart, declaring the company not guilty under criminal law Section 79(2) or 79(3) of the Indian Technology Act 2000 (amended 2008). The court ruled that Flipkart is exempt from liability if actions were taken with ‘due diligence.’ Additionally, Sections 85 and 86 of the Consumer Protection Act of 2019 hold intermediaries responsible for receiving notices on behalf of sellers, providing information, and disclosing their whereabouts to consumers and courts. In this context, Flipkart, being a market-based platform and not an inventory-based e-commerce entity, is deemed not liable for product defects.

Question 2. Must I pay the entire year’s fee despite studying for only half the year? I enrolled in an LLB program at a private college but had to leave after six months due to a family tragedy. The college is insisting on the payment of the full year’s fee. (Amit Parmar)

Answer: In the Supreme Court case of Usmania Islamia Academy vs State of Karnataka, it was established that an institute is permitted to collect fees for one semester and not for the entire course or year. Consequently, the college is not entitled to demand additional payments, even if they cite their rules. Any undertaking that is not in accordance with the law or contradicts Supreme Court orders holds no legal value. Additionally, the college is prohibited from retaining the original certificates of a candidate who decides to leave the college or course. This directive aligns with the UGC Circular of 2007 issued in response to the aforementioned judgment.

Question 3. Is it possible for an individual member to lodge a consumer complaint against a cooperative society? (Harsh Tripathi)

Answer:

• Indeed, both an individual member and multiple members have the right to file a consumer complaint against a cooperative society.
• While co-operative society matters are typically addressed through the Registrar of Societies as an arbitrator, Consumer Commissions provide an additional remedy for consumers. It’s noteworthy that the arbitration clause in the Co-operative Societies Act does not prohibit seeking recourse through Consumer Commissions.

Question 4. Can a consumer complaint be filed when a builder constructs a small market complex next to a residential complex, labelling it as a dispensary and gym room? (Pramod)

Answer: Certainly, residents of the housing society have the right to file a complaint regarding the misrepresentation of a small market complex as a dispensary and gym room. It is advisable to verify the approvals from the relevant authorities and raise concerns accordingly. If there is no formal information about such a complex displayed on the project’s website, it could be deemed as unfair and misleading under the Consumer Protection Act of 2019.

Question 5. I have presented all my evidence in court, and the case is now scheduled for the opposite party’s (OP) evidence. However, they have failed to appear for the last three scheduled dates. (Guddu Sasaram Rohtas)

Answer: File an application with the court, requesting to proceed ex parte against the Opposite Party (OP).

Question 6. What distinguishes written arguments from oral arguments? (Mittar Pal Sharma)

Answer: Written arguments constitute a comprehensive presentation of your case, encompassing references to the opposing party’s (OP) stance, supporting evidence, and relevant case law. You have the flexibility to cite legal precedents favoring your position and include citations or case law.

Oral arguments involve presenting the same information to the court, with the added element of the court potentially posing questions while you articulate your case and arguments.

Question 7. An order in favour of my client has been issued in one case, but the same matter is also pending before a civil court. Is this order considered valid, and what implications does it have on the ongoing civil case? (Pawan)

Answer: Immediately withdraw the civil case; once done, this order becomes final. It is not permissible to seek enrichment by pursuing the same claim in two different forums.

Question 8. I enrolled in two courses, but currently, I am exclusively pursuing the regular course and have not participated in any examinations or practical aspects of the distance course at IGNOU. Is there any potential issue with this situation? (Vivek)

Answer: As long as neither of the two courses or degrees is solely based on regular attendance, you can continue to pursue both. It ultimately depends on your approach to managing exam schedules. However, once you are already committed to one course, the other may no longer be a priority.

Question 9. I lost my job due to the actions of the Opposing Party (OP), but I lack evidence such as job records, appointment letters, or salary slips. How can I establish incidental loss in the court proceedings? (Ravi)

Answer: Proving it without documents is challenging. Your affidavit alone will not suffice as secondary evidence unless you can substantiate it with significant facts.

Question 10. Do I qualify for the position of PGT teacher if I completed my MA through distance education from 2021 to 2023 and also pursued regular B.Ed. during the same academic session? (Neha)

Answer:  Two considerations come into play – neither of the degrees should be pursued in regular mode simultaneously, as physical presence at two locations simultaneously is not feasible under UGC guidelines. Additionally, meeting the qualifying criteria for the position determines eligibility. However, other rules or criteria established by your selection board are not explicitly outlined.

Question 11. Attracted by promises from the Country Vacation club, I paid 10,000/- in 2010 after being told I had won a gift and would become a member. Subsequently, I realized my error, but they are refusing to refund the money. (Yash)

Answer:  Examine the terms and conditions you agreed to upon becoming a member. If the membership was on an annual basis, it may be applicable at this point. Nonetheless, refraining from further financial loss has undoubtedly been a prudent decision on your part.

Question 12. The builder is withholding the advance maintenance payment I made for five years, even after the formation of the society, despite having purchased the flat just seven months ago. (Vijay)

Answer:  The builder is responsible for maintenance until possession is handed over to the society. Subsequently, the society takes charge of maintenance affairs. Going forward, you are required to make payments to the society. If any amount differs from what was stipulated in your agreement, you have the right to make a claim.

Question 13. As a PVR Privilege Plus member using the latest version of the Cinema App, I noticed that the Privilege voucher section is empty when attempting to make payment for snacks. (Raj Makkar)

Answer:

• Reach out to the cinema hall authorities for clarification and rectification.
• Report your issue to the National Consumer Helpline (NCH) seeking assistance and resolution.
• If you face deficiencies in services, receive misleading information through apps, or experience enticing practices amounting to unfair trade practices, you have the option to issue a legal notice or file a consumer complaint.

Question 14. A person intends to initiate a medical negligence case directly with the National Commission as their primary complaint. It is advised that the National Commission may not entertain cases with bills less than two crores. However, the individual is aware that their sought compensation exceeds two crores, as they have endured significant suffering, undergone multiple subsequent operations due to negligence, and continue to face ongoing challenges.

Essential considerations:

1. Is it necessary for him to seek expert opinion?

– Application of “res ipsa loquitur.”

2. Why can’t he directly file the case before the National Commission?

– Due to an increase in pecuniary jurisdiction:

– District Commission: Cases up to 50 lakh

– State Commission: Cases above 50 lakh to 2 crores

– National Commission: Cases exceeding two crores

With two key aspects at hand:

1. Addressing the posed inquiries.
2. Acknowledging procedural modifications implemented in the new Act.

Case No 1

In the case of Neena Aneja & Anr. versus Jai Prakash Associates Ltd, Civil Appeal Nos. 3766-3767 of 2020, decided on 16th March 2021, a significant legal point addressed pertains to pecuniary jurisdiction during the transitional period of the enactment of the Consumer Protection Act 2019.

The Consumer Protection Act 2019 was enacted by Parliament and published in the Gazette of India on 9th August 2019. The provisions of the Act were notified by S.O. 2351(E) dated 15th July 2020, to come into force on 20th July 2020. Additional provisions were brought into force by S.O. 2421(E) dated 23rd July 2020, with effect from 24th July 2020. Given the varied dates of enactment and notification, some consumer commissions began accepting cases based on the new pecuniary jurisdiction set by the Act, while others did so after the official enforcement date.

The Hon’ble Supreme Court, in its analysis, considered the legal position concerning the change of forum based on prior decisions across two-judge benches, three-judge benches, constitutional benches, and rulings from various High Courts. The Court aimed to determine the legislative scheme governing jurisdictional provisions.

The Court concluded that proceedings initiated before the commencement of the Act of 2019 on 20th July 2020 would continue before the forums established under the Act of 1986. This includes the National Commission, State Commissions, and District Commissions, and they would not be transferred based on the pecuniary jurisdiction set for the forums established under the Act of 2019. The decision reflects a careful consideration of the transitional period and ensures continuity in the adjudication of cases based on the relevant jurisdictional framework.

Case No 2

• ECGC Limited vs Mokul Shriram Epc Jv
• A. NO. 99210 OF 2021 In Civil Appeal No. 1842 Of 2021
• Decided On February 15, 2022

Head Note – Condition of payment of the amount for filing appeal shall be governed by the act under which complaint was filed.

Consumer Protection Act, 2019 – Section 67 Proviso – Onerous condition of payment of 50% of the amount awarded will not be applicable to the complaints filed prior to the commencement of the 2019 Act.

The question now being examined here is as to whether the present appeal would be governed under the Consumer Protection Act, 2019 [For short, the ‘2019 Act’] or under the erstwhile 1986 Act.

In terms of Section 67 of the 2019 Act, no appeal against the order of National Commission shall be entertained by the Supreme Court unless the person has deposited fifty per cent of the amount required to be paid. Whereas, under the 1986 Act, by virtue of a proviso inserted vide Central Act 62 of 2002 w.e.f. 15.3.2003, the condition was that no appeal shall be entertained by the Supreme Court unless the person who is required to pay the amount deposits fifty per cent of the amount or fifty thousand, whichever is less.

SC Held

“In view of the binding precedents of the Constitution Bench judgments referred to above, we hold that onerous condition of payment of 50% of the amount awarded will not be applicable to the complaints filed prior to the commencement of the 2019 Act. Therefore, the I.A. is allowed.”                                          

Case No 3

• Narinder Chopra vs Jaiprakash Associates (NC)
• Consumer Complaint No 3258 0f 2017along with IA 330 of 2021&IA 1130 Of 2021
• Decided On May 16, 2021

Law Points:

• Whether pending matters are to be transferred to appropriate commission after enhancement of pecuniary jurisdiction.

NC Held

• There is no provision for transfer of pending cases in the new Act of 2019.
• The transitional provisions contained in Sections 31, 45 and 56 expressly indicate that the adjudicatory personnel who were functioning as Members of the District Commission, SCDRC and NCDRC under the erstwhile legislation shall continue to hold office under the new legislation.

• Section 107 status quo
• In prior rulings, the NCDRC had interpreted the amendments of 2002, which increased pecuniary jurisdiction, as having prospective effects. Reference can be made to cases such as Southfield Paints and Chemicals Pvt. Ltd. vs New India Assurance Co. Ltd. and Premier Automobiles Ltd. v. Dr. Manoj Ramachandran. In these instances, the NCDRC affirmed that the amendments, which augmented pecuniary jurisdiction, apply prospectively.

Issue-Mandatory BIS Mark

Bureau of Indian Standards Act, 2016, issued Notification dated 21.01.2020, making it mandatory for domestic pressure cooker to bear Standard Mark under a licence from Bureau of Indian Standards.

Facts

1. Cloudtail India Private Limited was doing e-commerce through Amazon website and listed ‘Amazon Basics Stainless Steel Outer Lid Pressure Cooker, 4 Litre’ on above website and sold 1033 pressure cookers in India after 01.02.2021. These pressure cookers were manufactured by “Zhejiang Supor Company Limited, Damaiyu Economic Investment Zone, Yuhuan, Taizhou, Zhjiang, China” and bears “European Commission Standard” mark as established in the European Union and were imported into India, prior to issue of the Order.
2. Central Consumer Protection Authority is a statutory authority constituted under Section 10 of the Consumer Protection Act, 2019 and under the power Section 18 of the Act, issued notice dated 29.11.2021 to the company to show cause as it were selling pressure cooker in violation of the Order, which was liable to be held as defective, violative of consumer right and amounts to unfair trade practice, within the meaning of the Act.
3. The Cloudtail India Private Limited submitted its reply dated 11.01.2022, stating

• That the pressure cookers in question were manufactured by “Zhejiang Supor Company Limited, Damaiyu Economic Investment Zone, Yuhuan, Taizhou, Zhjiang, China” and conforms to the “European Commission Standard” mark as established in the European Union Directives-2014/68/EU granted by TUV SUD, valid up to 13.12.2030 and holds a valid certification of conformance.
• That the product is of requisite quality, pre-shipment inspection by a nominated third-party inspection agency is carried out and product is imported after satisfaction. There was no complaint, related to safety of the pressure cooker since its introduction in the market.
• That import of this product in India was suspended prior to 01.02.2021, i.e. enforcement of the Order.
• The Order mandates domestic pressure cooker to bear BIS mark by the manufacturer and is not applicable for an importer.
• The Frequently Asked Questions, as addressed by the Bureau of Indian Standard (uploaded in February 2019 and again on 14.11.2019), explicitly state that if a product was imported to India before the last date of implementation or manufactured by domestic producers before the same date, it is permissible to sell such products.
• The pressure cooker is neither ‘defective’ within the meaning of Section 2(10) nor the appellant has committed any ‘unfair trade practice’ within the meaning of Section 2(47) of the Act. The product meets all objective criteria of Bureau of Indian Standards Act, 2016 and Consumer Protection Act, 2019 and the notice is liable to be discharged.
• That a test report dated 15.02.2022, conducted by Delhi Test House (a National Accreditation Board for Testing and Calibration Laboratory), along with a Certificate bearing the “European Commission Standard” mark in accordance with the European Union Directives 2014/68/EU, granted by TUV SUD, is available.

Action by CCPA

Authority called for reports in connection with sold cookers without BIS Mark.

• Director General Investigation, vide its report dated 04.07.2022 confirmed that product sold without mark after enforcement of the Order, manufacture, import, sell, distribution, hire, lease, store or exhibit for sale is violative of Section 17 of Bureau of Indian Standards Act, 2016.
• Department for Promotion of Industry and Internal Trade, vide its report dated. 28.09.2022 confirmed that no such exemption was issued by it, permitting sale of pressure cooker in the country, imported prior to the date of enforcement of the Order, which has no BIS mark.

Order by CCPA

• By virtue of its order dated 04.11.2022, the Central Consumer Protection Authority determined that following the implementation of the Order on 01.02.2021, all domestically sold pressure cookers in India must adhere to IS 2347:2017. Non-compliance will be subject to scrutiny.
• The pressure cookers which do not conform to IS 2347 :2017 are liable to be held as defective within the meaning of Section 2(10) of the Act and violative of the consumer’s right as defined under Section 2(9) of the Act.
• Admittedly, the appellant had sold 1033 pressure cookers after 01.02.2021, which did not conform IS 2347 :2017. The Cloudtail India Private Limited is directed to recall 1033 pressure cookers, sold by the company in the country, refunding its price to the consumers within 45 days and a penalty of Rs.100000/- has been imposed upon it for selling the pressure cooker, in violation of Quality Control Order, 2020. Hence the present appeal has been filed before Apex Commission (NC) for adjudication.

Stand of appellant company before NC

The company restated its position in the appeal, as mentioned earlier. Nevertheless, the appellant company also included the assertion that the Central Consumer Protection Authority’s finding labelling the pressure cooker as ‘defective’ due to the absence of the ISI mark is legally questionable. Furthermore, it argued that any violation of the Domestic Pressure Cooker (Quality Control) Order, 2020 should fall under the purview of the Bureau of Indian Standards Act, 2016, rather than the Consumer Protection Act, 2019.

Analysis by National Commission

‘Consumer Rights’ as defined under Section 2 (9) includes

• The right to be protected against the marketing of goods, products or services which are hazardous to life and property.
• The right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices.
• The right to be assured, wherever possible, access to a variety of goods, products or services at competitive prices.
• The right to be heard and to be assured that consumer’s interests will receive due consideration at appropriate fora.
• The right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumers; and
• The right to consumer awareness.

‘Defect’ as defined under Section 2(10) of the Act is quoted below:

“defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression “defective” shall be construed accordingly.”

Observations by the National Commission

Section 16 of the Bureau of Indian Standards Act, 2016 mandates the compulsory use of the standard mark. With the enforcement of the Quality Control Order, 2020, the use of the standard mark has become obligatory. Despite a product bearing the European Commission Standard Marks or satisfying the norms of the Bureau of Indian Standard in subsequent test reports, consumer rights must also be considered. Consumers have the right to purchase products with the BIS mark only after 01.02.2021. If the BIS mark is not affixed or certified, and the product is sold, it amounts to a violation of consumer rights, especially considering the mandatory requirement of the standard mark after the implementation of the Domestic Pressure Cooker (Quality Control) Order, 2020.

Supreme Court Verdict  

Various earlier judgments on the issue:

• Sumat Prasad Jain vs Sheojanam Prasad (Dead) & Ors (1973) 1 SCC 56
• Delhi High Court in Bottled Water Processor Association vs Union of Inida, 2010
• SCC Online Delhi 2038 and Andhra Pradesh High Court in Sri Seetharamanjaneya Swamyvari Seva Sangam vs Superintending Engineer, APSPDCL, 2015 SCC Online Hyd. 335

Above judgments highlighted the significance of BIS standards and held that people at large will be put to risk and public interest would be jeopardised if the safety standards are not complied with.

CCPA holds power under Section 18 of the Consumer Protection Act, 2019 and authority can exercise its power suo moto and to protect the consumers’ interest it can pass any suitable order. It cannot be said that it was without jurisdiction.

There is no evidence of procedural irregularities in the issuance of the order by CCPA. Subsequent to the commencement of the proceedings, a report dated 04.07.2022 has been acquired from the Director General (Investigation). The appellant has been granted a comprehensive opportunity for a hearing, including notice and access to the report.

CCPA’s order stands confirmed.

Case title: Cloudtail India Private Limited. Versus Central Consumer Protection Authority

CCPA Appeal No. 4 Of 2022 (Against the Order dated 04/11/2022 in Complaint No. J-25/72/2021 of the CCPA DELHI)

Cloudtail India Private Limited Instructed by CCPA to Retrieve 1033 Pressure Cookers, Refund Consumers within 45 Days, and Faces a Rs.100,000/- Penalty for Breaching Quality Control Order, 2020.

This marks the inaugural directive of its nature by CCPA since the implementation of the Consumer Protection Act 2019, a move that has been contested before the supreme consumer commission, challenging CCPA’s jurisdiction. Given that this is the first order from the newly established entity under the Act of 2019, its significance is noteworthy. 

Dr Prem Lata Legal Head VOICE

Issue-Mandatory BIS Mark

Bureau of Indian Standards Act, 2016, issued Notification dated 21.01.2020, making it mandatory for domestic pressure cooker to bear Standard Mark under a licence from Bureau of Indian Standards.

Facts

1. Cloudtail India Private Limited was doing e-commerce through Amazon website and listed ‘Amazon Basics Stainless Steel Outer Lid Pressure Cooker, 4 Litre’ on above website and sold 1033 pressure cookers in India after 01.02.2021. These pressure cookers were manufactured by “Zhejiang Supor Company Limited, Damaiyu Economic Investment Zone, Yuhuan, Taizhou, Zhjiang, China” and bears “European Commission Standard” mark as established in the European Union and were imported into India, prior to issue of the Order.
2. Central Consumer Protection Authority is a statutory authority constituted under Section 10 of the Consumer Protection Act, 2019 and under the power Section 18 of the Act, issued notice dated 29.11.2021 to the company to show cause as it were selling pressure cooker in violation of the Order, which was liable to be held as defective, violative of consumer right and amounts to unfair trade practice, within the meaning of the Act.
3. The Cloudtail India Private Limited submitted its reply dated 11.01.2022, stating

• That the pressure cookers in question were manufactured by “Zhejiang Supor Company Limited, Damaiyu Economic Investment Zone, Yuhuan, Taizhou, Zhjiang, China” and conforms to the “European Commission Standard” mark as established in the European Union Directives-2014/68/EU granted by TUV SUD, valid up to 13.12.2030 and holds a valid certification of conformance.
• That the product is of requisite quality, pre-shipment inspection by a nominated third-party inspection agency is carried out and product is imported after satisfaction. There was no complaint, related to safety of the pressure cooker since its introduction in the market.
• That import of this product in India was suspended prior to 01.02.2021, i.e. enforcement of the Order.
• The Order mandates domestic pressure cooker to bear BIS mark by the manufacturer and is not applicable for an importer.
• The Frequently Asked Questions, as addressed by the Bureau of Indian Standard (uploaded in February 2019 and again on 14.11.2019), explicitly state that if a product was imported to India before the last date of implementation or manufactured by domestic producers before the same date, it is permissible to sell such products.
• The pressure cooker is neither ‘defective’ within the meaning of Section 2(10) nor the appellant has committed any ‘unfair trade practice’ within the meaning of Section 2(47) of the Act. The product meets all objective criteria of Bureau of Indian Standards Act, 2016 and Consumer Protection Act, 2019 and the notice is liable to be discharged.
• That a test report dated 15.02.2022, conducted by Delhi Test House (a National Accreditation Board for Testing and Calibration Laboratory), along with a Certificate bearing the “European Commission Standard” mark in accordance with the European Union Directives 2014/68/EU, granted by TUV SUD, is available.

Action by CCPA

Authority called for reports in connection with sold cookers without BIS Mark.

• Director General Investigation, vide its report dated 04.07.2022 confirmed that product sold without mark after enforcement of the Order, manufacture, import, sell, distribution, hire, lease, store or exhibit for sale is violative of Section 17 of Bureau of Indian Standards Act, 2016.
• Department for Promotion of Industry and Internal Trade, vide its report dated. 28.09.2022 confirmed that no such exemption was issued by it, permitting sale of pressure cooker in the country, imported prior to the date of enforcement of the Order, which has no BIS mark.

Order by CCPA

• By virtue of its order dated 04.11.2022, the Central Consumer Protection Authority determined that following the implementation of the Order on 01.02.2021, all domestically sold pressure cookers in India must adhere to IS 2347:2017. Non-compliance will be subject to scrutiny.
• The pressure cookers which do not conform to IS 2347 :2017 are liable to be held as defective within the meaning of Section 2(10) of the Act and violative of the consumer’s right as defined under Section 2(9) of the Act.
• Admittedly, the appellant had sold 1033 pressure cookers after 01.02.2021, which did not conform IS 2347 :2017. The Cloudtail India Private Limited is directed to recall 1033 pressure cookers, sold by the company in the country, refunding its price to the consumers within 45 days and a penalty of Rs.100000/- has been imposed upon it for selling the pressure cooker, in violation of Quality Control Order, 2020. Hence the present appeal has been filed before Apex Commission (NC) for adjudication.

Stand of appellant company before NC

The company restated its position in the appeal, as mentioned earlier. Nevertheless, the appellant company also included the assertion that the Central Consumer Protection Authority’s finding labelling the pressure cooker as ‘defective’ due to the absence of the ISI mark is legally questionable. Furthermore, it argued that any violation of the Domestic Pressure Cooker (Quality Control) Order, 2020 should fall under the purview of the Bureau of Indian Standards Act, 2016, rather than the Consumer Protection Act, 2019.

Analysis by National Commission

‘Consumer Rights’ as defined under Section 2 (9) includes

• The right to be protected against the marketing of goods, products or services which are hazardous to life and property.
• The right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices.
• The right to be assured, wherever possible, access to a variety of goods, products or services at competitive prices.
• The right to be heard and to be assured that consumer’s interests will receive due consideration at appropriate fora.
• The right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumers; and
• The right to consumer awareness.

‘Defect’ as defined under Section 2(10) of the Act is quoted below:

“defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression “defective” shall be construed accordingly.”

Observations by the National Commission

Section 16 of the Bureau of Indian Standards Act, 2016 mandates the compulsory use of the standard mark. With the enforcement of the Quality Control Order, 2020, the use of the standard mark has become obligatory. Despite a product bearing the European Commission Standard Marks or satisfying the norms of the Bureau of Indian Standard in subsequent test reports, consumer rights must also be considered. Consumers have the right to purchase products with the BIS mark only after 01.02.2021. If the BIS mark is not affixed or certified, and the product is sold, it amounts to a violation of consumer rights, especially considering the mandatory requirement of the standard mark after the implementation of the Domestic Pressure Cooker (Quality Control) Order, 2020.

Supreme Court Verdict  

Various earlier judgments on the issue:

• Sumat Prasad Jain vs Sheojanam Prasad (Dead) & Ors (1973) 1 SCC 56
• Delhi High Court in Bottled Water Processor Association vs Union of Inida, 2010
• SCC Online Delhi 2038 and Andhra Pradesh High Court in Sri Seetharamanjaneya Swamyvari Seva Sangam vs Superintending Engineer, APSPDCL, 2015 SCC Online Hyd. 335

Above judgments highlighted the significance of BIS standards and held that people at large will be put to risk and public interest would be jeopardised if the safety standards are not complied with.

CCPA holds power under Section 18 of the Consumer Protection Act, 2019 and authority can exercise its power suo moto and to protect the consumers’ interest it can pass any suitable order. It cannot be said that it was without jurisdiction.

There is no evidence of procedural irregularities in the issuance of the order by CCPA. Subsequent to the commencement of the proceedings, a report dated 04.07.2022 has been acquired from the Director General (Investigation). The appellant has been granted a comprehensive opportunity for a hearing, including notice and access to the report.

CCPA’s order stands confirmed.

Question 1: Can more than one consumers aggrieved in the same manner? Law? (Chander Prakash Nagar 9414538685)

Answer: Yes Can file complaint together by number of consumers as ‘class action’ or ‘joint complaint’

 Sec 2(v) ‘complainant’ one or more consumers, where there are numerous consumers having the same interest

35. (1) A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Commission by-

 (c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit of, all consumers so interested;

Sec 18 (1) (a) 

Central Consumer Protection Authority (“Central Authority“) under Section 18 (1) (a) to “protect, promote and enforce the rights of consumers as a class”

Question 2: Adjournments time and again for 6 months inspite of Written Arguments filed by the complainant, What Remedy? (बिहार पटना)

Facts. Noting by court on 26.12.2023 as hereunder:

(बिहार पटना) 

उभय पक्ष उपस्थित .अभिलेख के आकलन से ज्ञात होता है की विपक्षी द्वारा हर बार समय मांग किया जा रहा है जबकि वादी प्रत्येक तिथि पैर उपस्थित रहते है और उनके द्वारा लिखित बेहेस भी दाखिल किया जा चूका है.ऐसी स्थिति में विपक्षी जब तक ६००/-रूपया कास्ट की राशी जमा नहीं करत तब तक उसकी बहस स्वीकार नहीं की जाएगी अगली तिथि 2.2.2024 

नोटिंग  2.2.2024 

अगली तिथि 13.5.2024.

Answer:

Write to Ministry of consumer affairs Govt of India, State Consumer commission and Nation consumer commission with the notings made for adjournments 

Court should have heard complainant’s arguments proceeding OP ex party and reserve the order, cost could be added with the order.

Question 3: Can there be an appeal against order on appeal, another appeal under CP Act? (Sidharaja Mysore ,Karnataka)

Answer: There is no provision of second appeal under the Act   

Section 21(b) in the Consumer Protection Act, 1986

(b) 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.

It is pertinent to mention that the same provision exists now in the new Act Consumer protection act 2019 too 

58 (1) (b) in Consumer Protection Act 2019 

“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”.

Case Law: Sunil Kumar Maity V/s State Bank of India and Anr. .civil appeal 432 of 2022 decided on 21th Jan 2022

“It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.’

Question 4: According to RERA regulations, the builder bears the responsibility of covering maintenance costs for unsold apartments. Should the society be accountable for the maintenance fees of 35 unsold flats when the entire building, comprising 230 flats, has been handed over to the society? (Mr Patel)

Answer: When the entire building, including the unsold 35 flats, is transferred to the society, these unsold flats now belong to the society as the owner. While the builder may not retain ownership of these flats, it’s plausible that adjustments in accounts have been made, considering the construction and unsold flat costs.

Under these circumstances, occupants are not obligated to pay monthly maintenance charges for the unsold flats. The expenses for common areas, electricity, plumbing, and other communal services are to be covered from the collective funds belonging to the society.

Question 5: The senior citizen is incapable of personally attending the Consumer Commission as the consumer applicant. However, the commission asserts that his presence is mandatory. What can be done in this situation? (Mr Vijay Kapoor)

Answer: The complainant has the authority to designate someone to appear on their behalf. Failure of the complainant to appear may lead to the dismissal of the complaint by default.

Question 6: Enforcement proceedings related to the Jiva club matter are underway. An execution petition has been submitted, but the opposing party (OP) has failed to appear in court. The known address is a rented property, and I lack information about any real estate holdings. However, I do possess details about the bank accounts. Is it possible to seize the funds from the bank account? (S. Dass)

Answer:

Two issues involved –a) Notice not served. 

• Notice can be sent to available address last known to the court and you.
• Can send through email also.
• Substituted service via publication in the local newspaper where the opposing party’s office or branch is situated is a viable option. An application must be filed with the court seeking permission for this alternative method, including details regarding the notice.

1. b) Attachment of property occurs only after serving notice on the property, and if the opposing party (OP) still fails to appear.
2. c) Account cannot be attached without taking all steps as it leads to many complications, other business /personal activities of a person get affected 
3. c) You can get address and other details from the bank, can request court to direct bank to do so.

Question 7: I lodged a complaint with the District Commission regarding a faulty paper cup machine, involving three entities: the dealer Rashmi Enterprises, the manufacturer Aman Impex, and SBI General Insurance for a loan. Only Rashmi Enterprises participated in the proceedings, resulting in an order against them and in my favour. I appealed, contesting the lack of compensation. Both SBI and Rashmi Enterprises challenged the order on their part. The State Commission identified an error in the district order, as Aman Impex was not served, absolving the manufacturer of liability. The State Commission recommended invoking the Product Liability clause for executing the order in the absence of the manufacturer. (Rajnikanth Panigrahi)

Answer: If there is no existing order against the manufacturer, the recourse under the product liability clause, specifically Section 85 and 86, allows you to pursue action against the dealer exclusively.

Question 8: I acquired a piece of land that originally belonged to the government (designated for a school and garden), but the colonizer and the sarpanch illegally sold it to me. They were subsequently incarcerated for this crime. However, I am currently facing challenges in obtaining construction approvals. (Sanchay Deshmukh)

Answer: The property is no longer legally yours as it has been declared government land. You have the option to file a case in a civil court, treating it as a recovery suit, seeking a refund of your money along with compensation for unfair dealing. Alternatively, you can file a complaint before the consumer court or RERA, citing unfair trade practices, and seek a refund along with compensation.

Question 9: A complaint was submitted to the consumer forum against DHFL, but it was dismissed. Subsequently, an appeal was made to the NLCT with a copy sent to the president, yet no action has been taken.

Answer: NCLT is not an appellate court for consumer matters. Therefore, filing an appeal there may not be effective. However, if the case is dismissed due to the opposing party being declared insolvent, you can then act as a financial creditor and submit a claim before NCLT seeking a refund or any other resolution as per the decisions made by NLCT.

Question 10: I reserved a flat in 2017 with a stipulated construction period of 3 years. However, after 6 years, the flat is now ready, but there is a request for an increased cost. (Imran Khan)

Answer: Submit a complaint to the consumer commission and request an interim order for possession at the initially agreed cost until a decision is reached on the merits of the case. File a claim for compensation for the delay in court. Challenge the issue of increased costs by emphasizing that the delay was caused by the builder, and the homebuyer had initially agreed to the cost set during the three-year construction period.

Question 11: I bought a vehicle with the expected delivery date set for December 6, 2023. However, upon delivery, I discovered that the sunroof was not functioning. The assurance was made to rectify the issue by December 11, 2023, but neither the repair nor the replacement of the vehicle has taken place. Additionally, attempts to cancel the registration are being denied.

Answer: You can lodge a complaint with the consumer commission, and depending on the merits of the case, you have various options such as repair, replacement, refund, etc.

Question 12: A newly purchased bike is experiencing starting problems, and despite efforts by the service centre, the defect persists. A case has been filed with the consumer commission, and the service centre is now declining to provide any further service. The upcoming court date is scheduled for February 19, 2024. Is there a way to expedite the repair process or secure an earlier court date? What type of application can be submitted before the court to address this issue? (Sandeep Arora)

Answer:

• You can file an application stating this problem and ask for an early date. 
• During the next hearing, you have the option to submit an application for an interim order, seeking permission to have the vehicle repaired until the case is adjudicated on its merits.
• You can also request the court to obtain expert opinion about the defects in the vehicle and decide the relief on merits.

Question 13: What should I do now that I am receiving a substantial bill of Rs 25,000 for a four-month period due to a fast meter?

Answer: Submit an application to the electricity department requesting a meter inspection and be prepared to pay a fee for this service. If the meter is discovered to be fast or defective, the billing will be adjusted based on the previous billing pattern, calculating the average over the last six months.

Question 14: Bought Yamaha Aero on October 5, 2023. The engine experienced a stoppage after covering 1364 km and required repairs for four days. Subsequently, after traveling 3200 km, the same issue recurred. Is it possible to request a replacement for the vehicle?

Answer: A replacement is not warranted unless it is declared irreparable or found to have a manufacturing defect. In such instances, one may consider approaching the consumer court, seek an expert opinion, and pursue a decision based on the merits of the case.

Click the link to see Questions and Answers January 2024