Alert Consumers: Legal Queries and Responses

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:

Is it necessary for him to seek expert opinion?

– Application of “res ipsa loquitur.”

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:

Addressing the posed inquiries.
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.

1986 Act	2019 Act
23. xx	67. xx
Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited in the prescribed manner fifty per cent of that amount or rupees fifty thousand, whichever is less.	Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited fifty per cent of that amount in the manner as may be prescribed

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

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.
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.
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.