HANDBOOK ON

CONSUMER LAW

Published by

The Legal Services Clinic

National Law School of India University, Bangalore

Karnataka, India

FOREWARD

The Legal Services Clinic of the National Law School of India University was formed with

the twin mandate of providing free legal aid, and of spreading legal awareness. Apart from

this, the student-run committee takes up projects which it feels are socially relevant, and are

the need of the hour. The Clinic fulfils its mandate of spreading legal awareness through

multiple legal literacy programmes and the publication of a newsletter about contemporary

socio-legal issues. The publication of this Handbook on Consumer Law is also an addition to

the Legal Services Clinic’s body of work in the area of spreading legal awareness.

Consumer Protection is a crucial area of law, and I am happy that the students have taken it

up as the subject matter of a handbook aimed at educating the public. Consumer law is an

area we all interact with in one way or the other, and awareness regarding consumer rights is

crucial at a time when every provider of goods and services is driven by profits and results in

consumer rights being overlooked. Hence, the bringing out of a handbook elucidating the

substantive and procedural aspects of the Consumer Protection legal regime in India is a

timely move. The language used in the handbook is simple, and is sure to be extremely user-

friendly. I laud the members and volunteers for Legal Services Clinic for their attempts in

making this handbook a reality.

Professor Ashok Patil

Chair on Consumer Law and Practice

Faculty Advisor, Legal Services Clinic, NLSIU

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PREFACE

We are all consumers of goods and services. When a consumer approaches the market, he or

she expects quality and value for money in every product purchased or service availed of.

The consumer protection movement arose as a response to instances of consumers being

cheated or harassed by providers of these goods and services. The consumer protection

regime is an acknowledgment by the state that consumers need to be protected from

unscrupulous practices of goods and service providers.

In India, the consumer protection regime was already in effect through provisions in the Sale

of Goods Act, Indian Contract Act, the Prevention of Food Adulteration Act, and so on.

However, seeking redressal against grievances under these laws was a lengthy process, and so

the Consumer Protection Act, 1986, came into being. It sought to protect consumers, and

provide them a simple and speedy redressal mechanism to ease their hardships.

This Handbook covers both substantive and procedural aspects of the Consumer Protection

Act, and its various chapters deal with definitions, institutions and authorities under the Act.

It also carries chapters on broader aspects of the consumer protection movement, such as

deficiency in services and misleading advertisements. The Handbook also contains a chapter

dealing exclusively with important case law. It is suggested that this Chapter may be referred

to for using precedent and better understanding. Finally, the last chapter contains a template

of a consumer complaint so that consumers may be able to draft their own complaints using

that.

The handbook has been written in simple language. The idea behind the endeavour of

bringing it out is to bridge the gap between law on paper and in practice. We seek to empower

the common man with information about their rights and procedure to enforce them. We hope

we have been successful in this endeavour, and that the handbook proves to be useful to those

it is aimed at helping.

The Legal Services Clinic

2013-2015

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TABLE OF CONTENTS

FOREWARD..................................................................................................................................1

PREFACE......................................................................................................................................2

INTRODUCTION TO CONSUMER RIGHTS AND CONSUMER PROTECTION ACT.............................4

AUTHORITIES AND INSTITUTIONS UNDER THE CONSUMER PROTECTION ACT, 1986................8

WHOM DO WE APPROACH FOR HELP?.......................................................................................17

REDRESSAL AGAINST DEFICIENCY IN SERVICE........................................................................22

MISLEADING ADVERTISEMENTS...............................................................................................28

LANDMARK DECISIONS ON CONSUMER RIGHTS......................................................................33

SAMPLE DRAFT COMPLAINT FORM..........................................................................................36

LIST OF CONTRIBUTORS...........................................................................................................39

Disclaimer: This Module/Booklet is merely informational in nature and is not a formal legal opinion rendered by practicing advocates. The Legal Services Clinic (LSC) is a committee run by law students of the National Law School of India University, Bangalore. The information provided is after research by students on legal issues and not a formed legal opinion. The Legal Services Clinic is not liable for any damage, directly or indirectly, resulting from such information.

Copyright © 2014 by The Legal Services Clinic-NLSIU: All rights reserved. This book or any portion thereof, may not be reproduced or used in any manner whatsoever, without due credits to the authors and the Legal Services Clinic, NLSIU.

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CHAPTER I

INTRODUCTION TO CONSUMER RIGHTS AND CONSUMER PROTECTION ACT

We are all users of goods and services every day. We travel on buses or trains, visit the

doctor, buy books, have a haircut, watch television. By consuming these goods and availing

these services, we become consumers.

In 1986, Consumer Protection Act, a social-welfare legislation was enacted with a view to

provide for the better protection of the interests of the consumers. It aims to promote

consumer rights, ensure simple, speedy and inexpensive redressal of consumer’s grievances

and it has provisions for establishment of consumer councils and other authorities for

settlement of consumer disputes and matter therewith connected.

This chapter briefly deals with the objectives and application of the Consumer Protection Act,

1986 and the issues of who is a consumer, when can protection under the Consumer Protec-

tion Act be availed, what are consumer rights and the reliefs available.

Objectives of Consumer Protection Act, 1986

The Consumer Protection Act, 1986 (hereinafter ‘Act’) endeavours to provide a simple,

speedy and inexpensive redressal of consumer grievances.

The provisions of the Act which protect consumer rights are compensatory, preventive

and punitive in nature.

The Act envisages a three-tier quasi-judicial machinery at the national, state and district

levels to provide these remedies.

The Act also envisages establishment of Consumer Protection Councils at the central,

state and district levels, whose main objectives are to promote and protect the rights of

consumers.

Application of the Act

The Consumer Protection Act covers all the sectors whether private, public, cooperative

or any person.

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The provisions of this Act cover ‘goods’ as well as ‘services’ unless specifically exempted

by the Central Government. The goods are those which are manufactured or produced

and sold to consumers through wholesalers and retailers. The services are in the nature of

transport, telephone, electricity, housing, banking, insurance, medical treatment, etc.

Section 3 of the Act specifically states that it is in addition to and not in derogation of any

other law. The Supreme Court has in many cases1 interpreted the above provision to

mean that the remedies provided under the Act are in addition to the remedies provided

under other statutes. It has been further held that if forums under the Act as well as an-

other are approached, then it is for the appropriate authority to permit the parties to opt

between the consumer forum and the other forum, depending on the facts and circum-

stances of the case.

Who is a consumer?

The word “consumer” has been defined in the Act and it means any person who buys any

goods or services for consideration (price). A consumer is not confined only to taking action

against the direct purchaser but also includes any other person who buys goods for considera-

tion when such use is made with the approval of the buyer. Therefore, a daughter who uses

the TV bought by her parents is also consumer of the TV. The consideration can be paid im-

mediately, or promised to paid or partly paid and partly promised.

However, if a person obtains goods for resale, or goods or services for any commercial pur-

pose, that person is not a consumer. For instance, if cyber-café buys multiple computers for

use at the cyber-café then the proprietor of the cyber café is not a consumer. If the computers

are defective, he does not have a remedy under the Act. He can take action against the manu-

facturer through other laws though. However, “commercial purpose” does not include use by

a person of goods or services availed by him exclusively for the purposes of earning his live-

lihood by means of self-employment. The intention of the legislature is to exclude big busi-

ness houses carrying on business with profit motive from being counted as consumers under

the Act. At the same time it protects the interests of small consumers who buy goods for self-

employment to earn their livelihood, like a rickshaw puller buying rickshaw for self-employ-

ment, or a farmer purchasing fertilizer for his crops – they are still “consumers” within the

meaning of the Act. See Chapter VI for caselaws on this point.

1 See for instance Secretary, Thirumurugan Co-operative Agricultural Credit Society v. M. Lalitha,(2004) 1 SCC 305

5

Rights of the Consumer

The Consumer Protection Act sets out many different rights of consumers. They are

mentioned in Section 6 of the Act. They are as follows:

a) the right to be protected against the marketing of goods and services which are hazardous

to life and property;

b) the right to be informed about the quality, quantity, potency, purity, standard and price of

goods or services, as the case may be so as to protect the consumer against unfair trade

practices;

c) the right to be assured, wherever possible, an access to a variety of goods and services at

competitive prices;

d) the right to be heard and to be assured that consumer's interests will receive due consider-

ation at appropriate forums;

e) the right to seek redressal against unfair trade practices or restrictive trade practices or un-

scrupulous exploitation of consumers; and

f) the right to consumer education.

These rights are actively promoted by the Consumer Protection Councils at the Central, State

and District Levels.

When can protection under Consumer Protection Act be availed?

An aggrieved consumer seeks redressal under the Act through the means of a complaint. It

does not mean that the consumer can complain against his each and every problem. The Act

has provided certain grounds on which complaint can be made. Similarly, relief against these

complaints can be granted within the set pattern. The Consumer Protection Act protects

consumers against the following:

If the goods purchased by a consumer suffer from any defect(s).

If the services availed of by a consumer suffer from any deficiency.

When the price paid by a consumer is in excess of the price displayed on the goods or

when the price is in excess of the price fixed under any law in force.

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Goods, which will be hazardous to life and safety, when used, are being offered for sale to

the public in contravention of the provisions of any law.

An unfair or restrictive trade practice adopted by any trader or service provider:

What are the reliefs that consumers may obtain?

The District Forum / State Commission can order the following reliefs:

To remove the defects in the goods pointed out

To replace the goods

To return to the complainant the price of the goods

To pay such amount of compensation for the loss or injury suffered by the consumer.

To remove the defects or deficiency in the services

To discontinue the unfair trade practice or not to repeat it

To withdraw the hazardous goods from being offered for sale

To provide the cost of expenditure incurred by the complainant

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CHAPTER II

AUTHORITIES AND INSTITUTIONS UNDER THE CONSUMER PROTECTION ACT, 1986

The Consumer Protection Act, 1986 provides for several quasi-judicial bodies for the purpose

of promoting and protecting interests of the consumer under a three-tier approach, namely the

District Fora, the State Commissions and the National Commission [Under Section 9 to 18,

18-A, 19 to 23, 24-A, 24-, 25, 26 and 27]. These are not the same as the normal civil courts

since they constitute separate statutory bodies giving alternate remedies. But they work on a

similar basis observing the same principles of natural justice, being empowered to give relief

and whenever possible impose penalties for not adhering to the orders of the bodies. These

bodies have been constituted with the objective of providing speedy redressal to consumer

disputes.

The Act not only elaborates on many important aspects of the aforementioned judicial

authorities such as jurisdiction, limitation, compensation, quorum and so on, but also on other

institutions such as the Consumer Protection Councils [Section 4, 5, 6, 7 and 8] and the

Consumer Welfare Fund. However, these are features and institutions that the common man

may not be able to easily identify with and hence, it is important to understand what they

signify.

Before filing a complaint and going to these courts, a legal notice is to be served by any

authorized lawyer on behalf of the client, or the client himself to the opposite party for giving

them the last opportunity to settle the matter out of court. This is necessary because courts are

already over burdened with numerous matters. Further, it communicates the intention of the

complainant in clear terms to the opposite party and acts as a legal warning that if the matter

is not resolved and the grievances of the consumer are not addressed within a specified period

of time, the consumer would have no option other than moving proceedings before the

consumer courts.

District Forum

The District Consumer Disputes Redressal Forum (DCDRF) functions at the district level and

is formed by the State Government in most of the districts with the permission of the Central

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Government (Section 9). Under Section 10 of the Act, the forum consists of one President

and two members, operating for a term of 5 years, or till they reach the age of 65 years,

whichever is earlier. The President must have the same qualifications as that of a District

Judge. The other two members must be above the age of 35 years, with the ability to judge a

matter with integrity, a basic bachelor’s degree from a recognized university and necessary

knowledge and experience of at least 10 years in the fields of law, commerce, economics,

public affairs, accountancy, industry or public administration and the problems within, for a

socio-economic understanding of matters. The Act also mentions insanity, insolvency and

conviction for a crime as the grounds of disqualification. All these appointments are made by

the State Government as recommended by a selection committee. Further, at least one of the

members must be a woman so as to ensure gender justice. The salary for these members is

also prescribed by the State Government.

Section 11 of the Act deals with the jurisdiction of the district forum. Jurisdiction is basically

the power of any court to hear and decide on matters, which means that the court can only

entertain cases which fall under its jurisdiction. Pecuniary jurisdiction deals with monetary

features or the financial value of claims for the goods and/or services, and compensation if

any. The district fora only handle cases where the claim is of value less than Rs. 20,00,000/-

(Rupees twenty lakhs). As for territorial jurisdiction, the district forum can hear matters

where the opposite parties at the time of the complaint carry on business, reside, personally

work for profit, or operate branches within the same geographical locations as that of the

forum, or the area where the cause of action arises. Here “cause of action” means those

events which have given the consumer the right to file a complaint before the dispute

redressal agencies. Appellate jurisdiction deals with the jurisdiction of the courts to hear and

decide matters on appeal from the courts below. However, the district fora, being the lowest

level of authority (trial level), do not have any appellate jurisdiction. At the time of writing,

there are 604 district forums in the country.

State Commission

This body is formally known as the State Consumer Disputes Redressal Commission

(SCDRC). It is also established by the State Government with the consent of the Central

Government (Section 9). It is composed of a President and minimum two members, although

in several commissions more than two members are appointed owing to the need for a greater

bench to handle a larger jurisdiction. One of these members must also compulsorily be a

9

woman. The President should have been a High Court Judge, and can be appointed after

consultation with the Chief Justice of India. Though the same criterion for the member of the

district forums apply to the members of this commission as well, at least 50% of the members

must be having experience of at least 10 years in the judiciary. The members are appointed by

the State Government following the recommendations of the Selection Committee. The term

for holding office cannot exceed five years from appointment or the age of 67 years,

whichever is earlier. The salary is to be decided by the State Government (Section 16). As for

pecuniary jurisdiction, the State Commission must redress all grievances with claims

amounting to more than Rs. 20,00,000/- (Rupees twenty lakhs) and up to Rs. 1,00,00,000

(Rupees one crore). A complaint can be filed at when the opposite parties or any one of them

reside, or carry on businesses directly or through branches, work for personal gain within

those limits, or where the cause of action arose within its limits.

The State Commission also has appellate jurisdiction to handle appeals from the District

Forums within that particular state. Any person who is not satisfied with the orders of the

District Forum may appeal to the State Commission, within 30 days from the date when the

order is communicated to the person. This 30-day period may be relaxed if sufficient cause

for delay is provided. The Commission also has revisional jurisdiction to call upon a matter,

its records and decrees, if it feels that the district forum has failed to exercise its jurisdiction,

or has exercised jurisdiction that it is not entitled to or illegally (Section 17).

What do you need while filing an appeal?

1. Three sets of the brief (for the commission) and one copy for each of the opposite parties.

2. District Forum order copy in original.

3. Case Summary.

4. File within 30 days from date of receipt of District Forum.

5. Condonation of delay petition (if 30 days are exceeded).

6. Memo of parties with addresses.

7. If you have an advocate, Vakalatnama.

8. Pagination 1 to last.

9. Attach FDR Photocopy to appeal: In favour of Registrar, State Commission/ State

Consumer Disputes Redressal Commission and should be drawn on a Nationalized Bank and

should be for a Minimum period of 1 year.

10. Index containing

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Memo of parties

Appeal

District Forum order original

Condonation of delay with affidavit (after expiry of 30 days)

Annexures

Vakalatnama

In any of the consumer courts, if an opposite party does not appear before the court for

several continuous hearings, the court can order for the matter to be proceeded for ex-parte,

without the presence of the other party. But before this order is passed, the court may ask the

complainant to re-serve the notice by dasti, i.e. in person. In certain exceptional

circumstances, where a convincing application is made by the opposite party in this regard,

the ex-parte order can be set aside. This is a major advantage to the consumer, since only the

one-sided story of the complainant will be relied on to arrive at a decision subject to the

evidence adduced. But several disadvantages can also be seen. For instance, the opposite

party may appear at a later stage and the ex-parte order may be set aside. Further, the lack of

any reply on behalf of opposite party, may make it difficult for the Complainant to prove his

side. Moreover, the ex-parte decision may be appealed against, thereby further delaying the

process.

National Commission:

The National Commission, known as the National Consumer Disputes Redressal

Commission, was established in 1988 under Section 9 of the Act, by the Central Government.

The Commission and its Registry are located in New Delhi. The NCDRC has its office at

Upbhokta Naya Bhawan, 'F' Block, GPO Complex, INA, New Delhi-110 023. For any

enquiry with the Registry of the National Commission, one can contact any of the following

Nos.: 011-24608801, 24608802, 24608803, 24608804 and Fax No. 24651505. It is composed

of a President who must be a Judge of the Supreme Court, and is appointed by the Central

Government in consultation with the Chief Justice of India, and no less than four members, of

which one must necessarily be a woman. The qualifications required are the same as that

applicable in the State Commissions. The members may hold office for a time period of 5

years or till the age of 70 years, whichever is earlier. The salary of the bench is to be decided

by the Central Government (Section 20).

The pecuniary jurisdiction of the National Commission covers all complaints with claims

11

exceeding the value of Rs. 1,00,00,000 (Rupees one crore). The commission has the appellate

jurisdiction to entertain all appeals against the orders of the State Commission, and the

revisional jurisdiction to look into matters of the State Commission on its own motion if it

feels that the latter has illegally, irregularly or simply failed to exercise the vested jurisdiction

(Section 21). Section 23 allows a party aggrieved by the orders of the National Commission

to appeal against such an order to the Supreme Court within a period of 30 days from the

passing of the order.

No complaint can be entertained by any of the fora beyond the limitation period of 2 years

since the date on which the cause of action arose. However, delays can be condoned if the

reasons provided by the complainant satisfy the bench. (Section 24A).

The tables on the next few pages illustrate the three-tier quasi judicial structure.

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13

Central Consumer Protection Council

[Established under Section 4(1)]

State Consumer Protection Council

[Established under Section 7(1)]

Composition

1) Minister in charge of Con-sumer Affairs in the Central Government

2) A number of other official and non-official members representing various inter-ests

[Under Section 4(2)]

Composition

1) Minister in charge of Consumer Affairs in the State Government

2) A number of other offi-cial and non-official members representing various interests

[Under Section 7(2)]

Supreme Court of IndiaHas the power to hear cases on appeal against the decisions of the National

Commission[Under Section 23]

Aims and ObjectivesThe Consumer Councils are advisory bodies and do not

have any adjudicatory authority. The main aims and objective are to promote and protect the rights and the

interests of the consumers.Sections 6 and 8 make provisions to protect these rights.

Some of these are as follows

a) The right to be protected against hazardous goods and unfair trade practices

b) Right to be heard and to seek redressal against unfair practices

c) Right to information about the quality, standards and price of the goods

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National Consumer Dispute Redressal

CommissionIt possesses original as

well as appellate jurisdiction

[Established under Section 9(c)]

Pecuniary JurisdictionThis commission can hear claims in excess

of Rs 1,00,00,000 (one crore)[Under Section 21(a)(i)]

Appellate JurisdictionThis commission can hear cases on appeal from any State Commission in the nation

[Under Section 21(a)(ii)]

QuorumAll proceedings must be conducted by the President and at least one other member

(Total 5 members)

Limitation PeriodNational Commission can entertain

complaints up to 2 years after the cause of action has arisen

[Under Section 24A(1)]

Administrative ControlExercises administrative control over all

State Commissions[Under Section 24B(1)]

Appeals against its decisions

can be made to the

Supreme Court within

30 days[Under

Section 23]

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State Consumer Dispute Redressal CommissionIt possesses original as

well as appellate jurisdiction

[Established under Section 9(b)] Limitation Period

State Commission can entertain complaints up to 2 years after the cause of

action has arisen[Under Section 24A(1)]

QuorumAll proceedings must be conducted by the president and at least one other member

(Total 3 members)[Under Section 18]

Pecuniary JurisdictionThis commission can hear claims between

Rs. 20,00,000 to Rs. 1,00,00,000[Under Section 17(a)(i)]

Appellate JurisdictionThis commission can hear cases on appeal

from any district forum in the state[Under Section 17(a)(ii)]

Appeals against its decisions

can be made to the

National Commission within 30

days [Under

Section 19]

Administrative ControlExercises administrative control over all

district for a under its jurisdiction[Under Section 24B(2)]

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District Consumer Dispute Redressal

Forum[Established under

Section 9(a)]

Pecuniary JurisdictionForum can hear claims up to Rs.

20,00,000[Under Section 14(2)]

Limitation PeriodDistrict forum can entertain complaints up to 2 years after the cause of action

has arisen[Under Section 24A(1)]

Quorum for proceedingsAll proceedings must be conducted by

the president and at least one other member

(Total 3 members)[Under Section 14(2)]

Appeals against its decisions

can be made to the State

Commission within 30 days [Under Section

15]

Remedies Available?The following remedies are exercisable by consumer redressal authorities at the district, state and the national level in the disposal of cases1) To provide adequate compensation to the complainant2) To order the removal of the defect from the product or to replace the defective product3) To remove the hazardous goods from the marketThese provisions are available under Sections 14,18 and 22 of the Act

CHAPTER III

WHOM DO WE APPROACH FOR HELP?If you are unsatisfied with the service provided to you or the product that you have

purchased, please approach the seller first and try to resolve it with them. If the seller is a

company or organization, they will have their own internal mechanism, and you may get a

quicker remedy. If, however, you are not satisfied with their response, you can choose to

approach the Consumer Court.

Jurisdiction and Fees:

You can file the complaint at the District forum, State Commission or the National

Commission. The appropriate forum is decided on the basis of the value of goods/services

and the compensation claimed, as provided in the table.

For example, if a complaint has to be filed for goods worth Rs.1,20,000- and an additional

compensation of Rs.10,000 is claimed, the total amount becomes Rs.1,30,000; the complaint

should therefore be filed in the District Forum. Similarly, if a complaint for Rs.21,00,000 is to

be filed then it should be done in the State Commission. It is allowed for consumers to reduce

the value of their claim if they prefer the convenience of filing the complaint in a lower

forum. While filing the complaint, a fee has to be submitted along with it, the amount of

which can be seen in the table below.

[Refer to Section 9A of the Consumer Protection Rules, 1987]

Value of Goods or Services and the

compensation claimed

Amount of Fee payable

(Pay by Demand Draft drawn on a

Nationalised Bank)

District Forum:

Upto Rs.1,00,000

For complaints who are under the

Below Poverty Line holding

Antyodaya Anna Yojana cards.

Nil

( Produce an attested copy of Antyodaya

Anna Yojana Card)

For others Rs.100.00

17

Above Rs.1,00,000 and upto Rs.5,00,000. Rs.200.00

Above Rs.5,00,000 and upto Rs.10,00,000. Rs.400.00

Above Rs.10,00,000 and upto Rs.20,00,000. Rs.500.00

State Commission:

Above Rs.20,00,000 and upto Rs.50,00,000

Rs.2000.00

Above Rs.50,00,000 and upto Rs.100,00,000 Rs.4000.00

National Commission:

Above Rs.100,00,000

Rs.5000.00

Once the Forum where the complaint has to be filed at has been decided, the place (which

district, city etc.) where the complaint is to be filed has to be decided. The complaint is filed

in that District Forum where the cause of action arises. Cause of action means the facts which

have caused you to file a complaint against the other party. You can also file the complaint at

a place where the opposite party’s branch office is located.

For example, Ramesh buys a cold drink bottle in Udupi and finds a snail in it. The company

also has a branch office at Bangalore. Ramesh can file a complaint in either the Udupi or the

Bangalore District Consumer Forum according to his convenience.

Similarly if you are filing a complaint directly at the State Commission then you can do so at

the respective State Commission. For filing a complaint at the National Commission, you can

do so either at the main office located in New Delhi or choose among the 11 circuit benches

at various places according to your convenience.

Things to remember:

1. The complaint is to be filed within two years from the date on which the cause of

action has arisen. A complaint should contain the following information:-

The name, description and address of the complainant and the opposite parties.

The facts relating to complaint and when and where it arose.

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Documents, if there are any, in support of the complaint.

The relief which the complainant is seeking.

(A sample of the complaint form is given at the end of this booklet).

2. The complaint should be signed by the complainant or his authorized agent and the

complaint affidavit must be notarized.

3. You need to make 3 copies for a complaint in the District Forum or State Commission

and one copy for each opposite party as per Regulation 7, Consumer Protection

Regulation, 2005. Remember to keep a copy of your complaint and all furnished

documents for your record.

4. Submit the complaint copies and the court fee (as calculated above) to the clerk in the

Consumer Court. The clerk will give you a date, and a reference number.

5. On this date, the court will decide whether or not you will be permitted to continue

with the case (admission). If admitted, you will be given another date, and the other

party will be asked by the court to reply to your complaint in 30 days.

6. Remember that you do not need a lawyer at any stage of the proceedings. Once the 30

days are over, you will be permitted to present your case before the Commission, and

the opposite party will be permitted to present their defence.

7. At each hearing, you will be told what to expect the next time. Please make sure to

attend hearings, as otherwise, the court will decide the matter by itself, and will not

always take into account your version of the events.

8. The hearings will continue until the court gives its decision. You will then receive a

copy of the order.

9. If you are unhappy with the decision, you may appeal. An order from the District

Forum is appealed to the State Commission (within 30 days), and an order from the

State Commission is appealed to the National Commission. You must submit an

‘appeal memorandum’ outlining the reasons why you disagree with the order of the

forum. Remember to attach a certified copy of the order with your memorandum.

10. If the opposite party does not comply with the order, you can file an ‘Execution

Petition’.

Here is a list of websites you may refer to for additional help:

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Government Resources:

1. National Consumer Disputes Redressal Commission: http://ncdrc.nic.in/

2. Karnataka State Consumer Disputes Redressal Commission: http://kscdrc.kar.nic.in/

3. Department of Food and Public Distribution: http://dfpd.nic.in/

4. Department of Consumer Affairs: http://consumeraffairs.nic.in/consumer/index.php

5. Food Safety and Standards Authority of India: http://www.fssai.gov.in/

6. Provides information regarding product standards, ISI certification and testing of

products - Bureau of Indian Standards: http://www.bis.org.in/index.asp

7. Provides information relating to regulation of future markets (where people contract

to buy commodities at a specific price but delivery will take place at a future date) -

Forward Markets Commission: http://www.fmc.gov.in/index.aspx

8. National Consumer Helpline: http://www.nationalconsumerhelpline.in/

9. Alerts and events regarding consumer law, a guide to filing a consumer complaint and

the recourse available to different types of consumer disputes - Consumer Online

Resource and Empowerment Centre: http://www.core.nic.in/ &

http://www.ccccore.co.in/

10. Information on consumer rights and protection, cause lists, judgments and reports -

Computerization and Computer Networking of Consumer Forums in the Country:

http://confonet.nic.in/

11. Provides consumer rights and responsibilities, helpline numbers and Consumer

Advice Centre contacts - State Consumer Helpline Knowledge Resource Management

Portal: http://www.consumeradvice.in/home

12. General Information - Jago Grahak Jago: http://india.gov.in/spotlight/jago-grahak-

jago-empowering-consumers#tab=tab-1

13. Publications regarding consumer education, protection and empowerment - Centre for

Consumer Studies: http://consumereducation.in/

14. Provides information on test centers across India and the services provided by them -

National Test House: http://www.nth.gov.in/

Non-Government Resources:

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1. Citizen Consumer and Civic Action Group: http://www.cag.org.in/

2. Consumer Rights Education and Awareness Trust: http://www.creatindia.org/

21

CHAPTER IV

REDRESSAL AGAINST DEFICIENCY IN SERVICE

What is ‘service’ under the Consumer Protection Act?

Section 2(1)(o) of the Consumer Protection Act defines “service”. This includes a service of

any description which is made available to potential users and includes provisions of facilities

in connection with banking, financing, insurance, transport, processing, supply of electrical or

other energy, board or lodging or both, housing construction, entertainment, amusement or

the purveying of news or other information, but does not include the rendering of any service

free of charge or under a contract of personal service such as a domestic servant.

The list of service sectors mentioned is not exhaustive. It is regarded as a service, if three

main criterions are met –

1. The service should be made available to potential users. The word ‘any’ has been used in a

wide context and the term ‘potential users’ indicate not only actual users but also those who

are capable of using or availing the service in future.

2. The service should not be free of charge. For instance, the service rendered by a

Government Hospital to every patient free-of-cost is not a service under the Act. The position

is that where services are rendered free of charge to ‘everyone’, the Act does not apply. But if

the fees are required to be paid by everybody, then the Act will apply.

3. It should not be under a contract of personal service. In general, the expression ‘contract of

personal service’ means a contract to render services in a private capacity to individuals. The

rationale for excluding contract of personal service is that if under such a contract, an

individual finds that the service rendered is deficient then he has an option to discontinue

services at any point and there is no need for approaching the Forum. Further, under a

contract of personal service, the relationship is such that the user of services can order what is

to be done and how it is to be done. “Service” under the Act is to be considered as a regular

commercial transaction and a contract of personal service is specifically excluded. A

‘contract of personal service’ is different from a ‘contract for personal services’ – the latter is

recognized under the Act.

NOTE: It does not make a difference if the service is provided by Government body or a

22

private body.

NOTE: Test to be followed is to see whether the person against whom the complaint is made

performs a service for consideration sought by potential users.

Some of the sectors that have been recognized under the Act are – Airlines, Chartered

Accountants, Courier, Medical Services, Postal services, Telephone services.

Who is a consumer of services?

The Consumer Protection Act does not define the term ‘hire’ but it has been understood as

‘procuring the use of services’ i.e. service which is made available to potential users.

Although initially, the provision had listed the services that came under the Act, a recent

amendment has widened the scope of ‘services’. An example of a service is when a person

goes to the doctor for treatment and the doctor prescribes certain medicines, the patient here

becomes a consumer since he is procuring a service from the doctor. Another example would

be going for tuitions. Here, the tutor is offering his/her expertise in the subject i.e. a service

and you are acting as a consumer when you are procuring the service of the tutor.

Consumer of service also includes the beneficiaries of services. A person may hire or avail

services for himself or for another person. Even in the latter case, such beneficiary is

regarded as a consumer. For instance, a husband takes his wife to the doctor for treatment. As

per the Act, both the husband and wife are considered as consumers. This was recognized in

KB Jayalaxmi v. Government of Tamil Nadu wherein it was held that consumer includes

beneficiary of goods and services.2

Thus, if any services are found to be deficient, a consumer can make a complaint and the

primary requirement is that the said service should fall within the above definition of service.

In the above case, both the husband and the wife are eligible to institute a complaint as they

are consumers.

What is deficiency in service?

“Deficiency” as per Section 2(1)(g) of the Act means any fault, imperfection, shortcoming or

inadequacy in the quality, nature or manner of performance that is required to be maintained

by or under the law for time being in force or in pursuance of a contract.

2 K.B. Jayalaxmi v. Government of Tamil Nadu, (1994) 1 CPR 114.

23

There are three main elements –

Inadequacy or Shortcoming or Fault

For instance, an individual boards a train and if the shutters of a window or the fans do

not work, it would be considered a deficiency of service. Or if an individual books a vehi-

cle and it has been promised to be delivered within a certain period of time and if it has

not been delivered within that period, it is a deficiency of service.

Performance of service not in conformity with law or with contractual terms

For instance, one person has entered into a contract with another to provide construction

materials of a particular quality. If the person fails to provide those materials or fails to

provide materials of the agreed quality, it amounts to deficiency.

Deficiency in relation to the service

Deficiency has to be in connection with the service rendered or terms of service. If the

grievance does not pertain to a matter which does not fall within the definition of service,

then there is no application. Hence, when a service is found to be deficient, a consumer

can make a complaint provided that the said service should fall within the above defini-

tion of service.

Medical Services

The Supreme Court in Indian Medical Association v. V.P. Shantha held that services rendered

by medical practitioners is included and covered under the definition of services as per

Section 2(1)(o) of the Act.3

Detailed position is as follows –

Services rendered by medical practitioners to a patient, except if it is free of charge, by

way of consultation, or a diagnosis, either medicinal or surgical, the services would fall

under the Act.

Contract of personal service includes employment of a medical practitioner and is outside

the purview of ‘service’ as defined under the Act.

Medical services rendered by medical practitioners, which are free of charge, are not ‘ser-

vice’ as defined under the Act. 3 Indian Medical Association v. V.P. Shantha, AIR 1996 SC 550.

24

Services are not regarded ‘free of charge’ if service has been taken under insurance poli-

cies and thus falls under the Act. Generally, government Hospitals are excluded. How-

ever, in Shantha v. State of Andhra Pradesh, the High Court exercising its writ jurisdic-

tion awarded compensation to a patient whose treatment was done negligently.4

In the medical sector, a medical practitioner is expected to have a reasonable degree of

skill and knowledge and a duty of reasonable care is owed to the patient.

Since negligence cases are high in this sector, the onus is on both the practitioner, to ren-

der his service properly and on the patient, if he is a victim of negligence to prove beyond

reasonable doubt. Mere allegations of negligence will not suffice.

Medical Negligence requires three main ingredients –

1. The doctor owes a duty of care to his patient.

2. The doctor has breached this duty of care.

3. The patient has suffered an injury to the breach by doctor.

The duty that a doctor owes to his patient can be a contractual duty or duty arising from tort

law. The doctor must exercise a reasonable degree of care. Therefore, a doctor need not

ensure that every patient is completely cured. Reasonable degree of care and skill means the

care and skill used by an ordinary competent member of the profession in circumstance in

question. Further in Shantha v. State of Andhra Pradesh, it was held that skill of medical

practitioners differ from doctor to doctor and mere fact that the result was not satisfactory

cannot be a ground for holding that the doctor has not acted reasonably.

Liability of a doctor does not arise when the patient suffers an injury but only when such

injury is a result of the doctor’s conduct, which has fallen below the reasonable care and skill

standard. This means that a doctor will not be liable for every injury sustained by the patient

but for only those injuries sustained due to his breach of duty. There is a duty on the patient to

prove that the breach of duty by the doctor was the main or most probable cause of the injury.

4 Shantha v. State of Andhra Pradesh, AIR 1998 AP 51.

25

Banking Sector

Consumer as per Section 2(1)(d) of the Act includes a person who avails or hires any service

for a consideration and hence, a bank customer is also regarded as consumer and can prefer

complaints under the Act for any deficiency in service. In Vimal Chandra Grover v. Bank of

India, the Supreme Court held that a bank renders service by providing facilities to a

consumer and charges interest and other charges for the same.5 Therefore, such facilities are

regarded as service as per the Act. Consumer Courts have been awarding the value of services

for any deficiency along with compensation over the years.

Insurance Sector

In the Insurance sector, high levels of lack of consumer satisfaction are witnessed. This is

because many consumers make claims and the insurance company repudiates them or

honours the claim only partially. Since insurance issues are a complex matter, the consumer

courts do not handle all the issues. There are special redressal mechanisms available such as:

1. Redressal under the Insurance Regulatory Development Authority (Protection of Poli-

cyholders’ Interests Regulations), 2002.

2. IRDA Grievance Cell

3. Insurance Ombudsman

4. Consumer Courts

5. Civil Courts

The Insurance Ombudsman is the primary authority to receive and consider complaints in re-

spect of personal lines of insurance from any person who has any grievance against an in-

surer. The complaint may relate to any grievance against the insurer i.e. (a) any partial or total

repudiation of claims by the insurance companies, (b) dispute with regard to premium paid or

payable in terms of the policy, (c) dispute on the legal construction of the policy wordings in

case such dispute relates to claims; (d) delay in settlement of claims and (e) non-issuance of

any insurance document to customers after receipt of premium.

If the policy holder is not satisfied with the award of the Ombudsman he can approach other

avenues like Consumer Forums and Courts for redressal of his grievances. In order to bring

5 Vimal Chandra Grover v. Bank of India, AIR 2000 SC 2181.

26

the matter under the Consumer Protection Act, the three requirements mentioned earlier

under the medical sector have to be fulfilled.

Railway Services

Railway services include providing facilities to the passengers for a smooth journey.

Deficiency of services in railways include:

When goods and other valuable items are stolen.

Seats are not proper and cause discomfort to the traveling passengers.

Failure to provide water in the toilet.

Although the railways are guided and guarded by their own laws, the essential services that is

provided falls under the Consumer Protection Act.

Legal Services

Hiring a lawyer to represent a person is not a service under the Consumer Protection Act,

1986. In D.K. Gandhi v. M. Mathias, the Supreme Court held that lawyers render legal

assistance and not service.6 Further, it was clarified in the same case that it is the respective

Bar Council that can take care in event of default on part of their fellow advocates. Hence,

legal assistance rendered by an advocate to his client is not covered under the Consumer

Protection Act.

6 D.K. Gandhi v. M. Mathias, (2009) 2 Comp LJ 468.

27

CHAPTER V

MISLEADING ADVERTISEMENTS

What is a misleading advertisement?

An advertisement is a public announcement or representation informing the consumer about a

particular good or service. It is a representation in any form introducing or publicizing a

good. Advertisements have become an indispensable part of marketing a particular product.

Of late, advertisements have been taking up large spaces in print and television services. It is

the most efficient tool to help consumers make ‘informed’ decisions.

Although the idea of an advertisement is to provide consumers with relevant information,

they often end up disseminating distorted or false information. Through advertisements,

companies propagate false claims, characteristics or standards. Thereon, simply put,

misleading advertisements are those which give ‘false’ or ‘deceptive’ information to the

consumer.

When can we say that an advertisement is misleading?

There are few basic requirements for an advertisement to be misleading or deceptive, as laid

down by the Federal Trade Commission of USA:

1. It should be an public announcement.

2. It contains misrepresentation of information.

3. The consumer is acting reasonably.

4. The practice is material and consumer injury is possible because consumers are likely

to have chosen differently if there was no deception

A misleading advertisement propagates false claims regarding the characteristics (it can be

with regard to functioning, guarantee, standards etc.) of the good or gives false information

about another’s product.

Here are a few examples for misleading advertisements:

Puffery: Exaggeration through use of superlative or subjective words such as ‘best’,

‘favourite’, ‘trusted’, ‘biggest’ etc., is allowed. But puffery at the at the cost of causing loss or

28

injury to the customers or other manufactures. Example: X company using campaign that its

product X was 102 per cent better than Y of another company. Or stating X is ten times more

effective than product Y.

False claims such as increase in height within 2 weeks.

False guarantees such as 100% guarantee on cure of a certain illness

Advertisements by some financial companies such as doubling money in a given time with-

out any base to justify the claim are deceptive in nature.

Colleges misrepresenting to be affiliated to a particular university.

Claiming to give 25% extra by reducing the initial quantity of the product.

Making claims based on false comparisons or tests.

What rights of the consumers are violated by misleading advertisements?

Misleading advertisements violate the following rights of the consumer:

1. Right to Information: A consumer can make right choices only if he has the right informa-

tion to base his opinions on. If the consumer is fed false information, he cannot be said to

have made an ‘informed’ choice. Advertisements propagating false or deceptive information

would be harmful to the successful working of the whole market mechanism.

2. Right to Choice: When material facts which are likely to influence buying decisions are not

disclosed, the advertisement becomes deceptive. A consumer is swayed from his position

based on false claims and facts. By hiding or misrepresenting certain information, they impair

the choice of the consumers. Misrepresentation acts as an impediment to freedom of choice.

3. Right to Safety: Deceptive information or false representations can be a health hazard. It

may be a risk to the safety of the consumer. Actions such as using artificial colourants or

preservative without any indication or omitting to mention the side effects of certain products

can be harmful. Sometimes products that falsely claim to be magical cures for medical ail-

ments have resulted in serious health repercussions or even death.

Are misleading advertisements an unfair practice under the Act?

Section 2(1)(r) of the Consumer Protection Act deals with unfair practices. It is a practice that

29

adopts unfair or deceptive means. The Section speaks of broadly four categories:

1. False representation of facts about the product

2. False representation of warranty

3. False representation of price and

4. False or misleading facts about goods of another person

As already explained through its characteristics, a misleading advertisement would squarely

fall within the ambit of Section 2(1)(r) of the Act.

Does the Act protect consumers from misleading advertisements?

The Act protects consumers from such misleading advertisements. Firstly, it is one of the

objects of the Act under Section 6 to protect consumers’ right to information and protect them

against unfair trade practices. Further, a consumer has the right to seek redressal against

unfair trade practices by filling a complaint, as reiterated in Section 6(e) and Section 2(c).

Therefore the consumer can approach the consumer forum for any grievances regarding

misleading advertisements.

What are the means of redressal available against misleading advertisements?

Even though the Constitution of India guarantees freedom of speech and expression, through

various judgments, the Supreme Court has held that advertisements would amount to

commercial expression subject to certain reasonable restrictions. A landmark case where the

apex court lays this down is Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd.7 These

limitations include restriction on manipulative and misleading advertisements as well.

In India, regulation of misleading advertisements is done under Acts such as the Monopolies

and Restrictive Trade Practices Act, the Consumer Protection Act and other special statutes,

like the Cable Television Network Regulation Act, 1995 and the Drugs and Magic Remedies

(Objectionable Advertisements) Act, 1945. There also exists a self-regulatory organization for

advertisers called the Advertising Standards Council of India (ASCI).

Consumer Protection Act, 1986:

Under the Consumer Protection Act, a consumer has the right to seek redressal against unfair 7 Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., AIR 1995 SC 2438.

30

trade practices. Deceptive advertising is one such unfair trade practice. The usual process and

jurisdictional rules pertaining to a consumer complaint being filed under the Consumer

Protection Act applies here as well. If after the proceedings have been carried out, it has been

established that the advertisement was deceptive, then the consumer will be offered in the

form of relief, a refund of the price paid and award of compensation for loss or injury

suffered by him. The opposite party may also be ordered to withdraw the goods from the

market, to cease manufacture of such goods, to discontinue such unfair trade practice, or to

refund litigation cost to the consumer. Most importantly, Section 14(h)(c) of the Act says that

the Court has the power to order “corrective advertisement to neutralize the effect of

misleading advertisement at the cost of opposite party responsible for issuing such misleading

advertisement”. For example, if the court finds that a shampoo that claims to prevent hair fall

does not actually do so, it may order the manufacturer to run advertisements clarifying to the

public that the shampoo does not prevent falling of hair, and that the earlier advertisement

made a false claim. Thus, the Consumer Protection Act has redressal mechanisms that can

serve to have a deterrent effect on erring manufacturers.

Monopolies and Restrictive Trade Practices Act, 1969

Prior to the Consumer Protection Act coming into force in 1986, the MRTP Act took “unfair

trade practices” within its regulatory purview. Under this Act, the MRTP Commission had the

power to inquire into any unfair trade practice,

1) upon its own knowledge or information,

2) upon receiving a complaint,

3) upon reference by the Central or the State Government, and

4) upon application made to it by the Director General (Investigation and Registration).

The MRTP Commission no longer takes action on matters pertaining to misleading

advertisements. The Act itself has been repealed and been replaced by the Competition Act,

2002.

Associations involved in self-regulation:

There are many agencies which, in the light of consumer awareness and greater emphases on

fair trade practices, regulate their own advertisements. A few such agencies are Press Council

of India, Prasar Bharti, and Advertising Standards Council of India (ASCI).

31

ASCI's code of self-regulation says: "Advertisements should be truthful and fair to consumers

and competitors and be within the bounds of generally accepted standards of public decency

and propriety… Not used indiscriminately for the promotion of products, hazardous or

harmful to society or to individuals particularly minors, to a degree unacceptable to society at

large". ASCI receives and processes complaints against advertisements from consumers, the

general public, industries, and all those who rely on advertising as commercial

communication. ASCI is a non-statutory tribunal, which on finding that an advertisement is

misleading, issues a warning to the advertisers against such practices. However, ASCI can

only act on receiving a complaint and has no suo motu powers of regulation.

This is where the need for consumer action arises. While there are a multitude of consumer-

friendly laws and agencies, it is only if consumers proactively file complaints and are

vigilant, will the menace of unfair trade practices such as misleading advertisements be

contained. Apart from the consumer forum and the ASCI, the Reserve Bank of India, Medical

Council of India, Insurance Regulatory Development Authority, Telecom Regulatory

Authority of India and Securities and Exchange Board of India, are also authorized by their

establishing statutes to exercise control over misleading advertisements in their respective

domains.

32

CHAPTER VI

LANDMARK DECISIONS ON CONSUMER RIGHTS

Jurisdiction:

With respect to jurisdiction of Consumer Forums, the general principle prescribed in the

Consumer Protection Act is that unless there is a specific defect in goods or deficiency in

service, the consumer forum will not exercise competent jurisdiction.

In R. Sethuraman v. Manager, Indian Overseas Bank, a case which dealt with the question of

repayment that a bank had claimed as well as whether the bank had charged excess interest,

the National Commission held that the civil court and not the consumer court would be the

proper forum to adjudicate such disputes.8 Further, it has also been held that the fora

constituted under the COPRA do not have the authority to pass interim orders.9 Similarly, the

fora established under the COPRA also have no jurisdiction to declare any rule in the

prospectus of an institution illegal.10

It is known that different fora are approached with respect to issues involving different

amounts of money. In Farook Haji Ismile v. Gavabhai Bhesania it was held that the

pecuniary jurisdiction depends upon the amount of relief claimed and not upon the value of

the subject matter or upon the relief allowed by the forum.11 In Hitendra Raman Lal Shah v.

Jagson Airlines the issue of territorial jurisdiction was discussed.12 An air ticket was

purchased at Ahmedabad from an agent for a journey from Delhi to Kulu and back. The ticket

mentioned wrong time of departure and, therefore, the flight was missed. A complaint for

compensation was entertained at Ahmedabad. Payment for the journey was made there and,

therefore it was held that a part of the cause of action arose there.

Who is a not a consumer under COPRA?

Under the Consumer Protection Act, a person who buys goods for a commercial purpose is

not a consumer, and therefore cannot avail the protection of the Act. According to the Act,

8 R. Sethuraman v. Manager, Indian Overseas Bank, 1996 (2) CPC 0283.9 Morgan Stanley Mutual Fund v. Karthik Das, 1994 SCC (4) 225.10 Homeopathic Medical College and Hospital, Chandigarh v. Mrs. Gunita Virk, [(1996)1 CLC 36

NCDRC]. 11 Farook Haji Ismile v. Gavabhai Bhesania, (1991)2 CPJ 452 Guj.12 Hitendra Raman Lal Shah v. Jagson Airlines, (1995)2 CPJ 90 Guj.

33

“commercial purpose” does not include the use by a person of goods and services which are

bought exclusively for the purpose of earning his livelihood by means of self-employment.

However, this definition is quite broad and raises a lot of questions.

In Lucknow Development Authority v. MK Gupta, it was held that all provisions of the

COPRA must be constructed in favour of the consumer so that the object and purpose of the

Act is served.13 However, this must be balanced by the fact that if “commercial purpose”

were read too broadly, then it would lead to too many cases being brought before the court.

This would also defeat the purpose of the Act.14

A person who buys goods exclusively for the purpose of earning his livelihood, shall still be a

consumer. It must be remembered here that the use must be exclusive. For example, if a

person is engaged in large-scale manufacture or trading business for profit-making purpose,

then purchase of goods for such a business shall be for commercial purpose, and the person

won’t be a consumer.15 On the other hand, buying a refrigerator for a small shop,16 or buying

a PCO Machine for a person’s livelihood,17 is not a commercial purpose as it is for the

purpose of earning livelihood.

Moreover, persons may buy goods for their livelihood and still be consumers, only if it is

self-employed. In Laxmi Engineering Works case, this test was made broader to include those

who run a business with a help of few other people.18 The important principle here is that if a

person is occupying a mere supervisory provision in a business, he will not be a consumer if

he purchases goods for such a business.

To summarize:

1) A person who buys goods for a commercial purpose is not a consumer.

2) “Commercial purpose” does not include buying goods for self-employment.

3) Self-employment does not mean that the person is working alone- he may work with a

few other people and still be ‘self-employed’ for the purpose of this provision.

General Act and Special Act

13 Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787.14 Morgan Stanley Mutual Fund v. Kartick Das, 1994 4 SCC 225.15 Laxmi Engineering Works v. PSG Industrial Institute AIR 1995 SC 1428.16 A. Lakshmanan v. Anjaleen Enterprises, (1993) 2 CPR 355 TN.17 Vinod Jain v. Ravi Frost Refrigerator, (1993) 2 CPR 537. 18 Laxmi Engineering Works v. PSG Industrial Institute, AIR 1995 SC 1428.

34

Section 3 of the Consumer Protection Act explains that the Act shall be in addition to the

present Acts and not in derogation of them. This essentially means that the provisions of the

Act will work alongside the other Acts. If a dispute arises under this Act, then the provisions

of the Act will be applicable so long as they are not inconsistent with any other law which at

the time is in force. This upholds the Principle of ‘Special Act overrides General Act’. The

Courts have also upheld the same.

In the case of Chairman, Thiruvalluvar Transport Corporation v. Consumer Protection

Council compensation was sought for a motor vehicle accident.19 The Court held that the

National Commission cannot adjudicate upon the matter as it was not related to any service

hired or availed by consumer. The Court further held that the Motor Vehicles Act, 1988 is a

special Act and hence it would prevail over Consumer Protection Act, which is a general Act.

In the case of Presidency Post Master v. Dr. V. Shanker Rao the Court Held that the

provisions of the Act grant additional remedy and if such remedy given under the Act is

barred by other Acts, then such a remedy cannot be sought after.20 However, the rights

granted under the Act cannot be cut down or curbed by an arbitration agreement entered into

by the parties. This was held in the case of Jagdamba Rice Mills v. Union of India.21

In the case of General Manager, Telecom, v. M. Krishnan and Another, the respondents filed

a complaint before the consumer forum due to non-payment of telephone bill.22 The

Petitioners contended that as the Telegraph Act specifically entails a provision for remedies

arising out of any dispute under it, referral to consumer forum would be barred as special Act

overrides general Act. This contention was upheld by the Supreme Court.

Thus, it can be concluded that one needs to look into the objective of the Act, which is to

protect the interest of the consumers by way of good redress mechanism and such mechanism

could be achieved by implementing and interpreting the Act as an addition to other existing

specific or special Acts.

19 Chairman, Thiruvalluvar Transport Corporation v. Consumer Protection Council, AIR 1995 SC 1384.20 Presidency Post Master v. Dr. V.Shanker Rao, 1993 (2) CPJ 141.21 Jagdamba Rice Mills v. Union of India, 1991 (1) CPJ 273.22 General Manager, Telecom, v. M.Krishnan and Another, 2009 INDLAW SC 1082.

35

CHAPTER VII

SAMPLE DRAFT COMPLAINT FORM

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM AT……………..

OR

BEFORE THE HON’BLE STATE CONSUMER DISPUTES REDRESSAL

COMMISSION AT……………….

OR

BEFORE THE HON’BLE NATONAL CONSUMER

DISPUTES REDRESSAL COMMISSION

AT NEW DELHI

IN RE: COMPLAINT NO……OF 20…….

IN THE MATTER OF:

(Full Name)

(Description)

(Complete Address)

……………Complainant

-Vs.-

(Full Name)

(Description)

(Complete Address)

…………….Opposite party/parties

Complaint under Section 12/Section 17/Section 21 of the Consumer Protection Act,

1986:

Respectfully showeth:

1. Introduction: In this opening paragraph, you should give your introduction as

well as that of the opposite parties.

2. Transaction: In this paragraph, you should describe the transaction i.e. particu-

lars and details of goods/services availed: items of goods/kind and nature of ser-

36

vice, date of purchase of goods/availing of service, amount paid as price/ consid-

eration, full of in part towards the goods/services, photocopies of the /cash

memo/vouchers or receipt should be attached and properly marked as Annexure

A, B, C and so forth.

3. Defect/Deficiency: In this paragraph, you should explain the grievance i.e.

whether the loss or damage has been caused by some unfair trade practice or re-

strictive trade practice adopted by any trader or there is some defect in the goods

or there has been deficiency in service or excessive pricing for the goods . One

should bring out the nature of unfair trade practice adopted by the trader, i.e. re-

lating to the quality of goods/services, sponsorship, warranty or guarantee for

such period promised and so on. The nature and extent of defects in goods should

be explained and you should specify the details of actual price fixed by or under

any law in force at that point of time or as set out on goods and their packing vis-

à-vis the price charged by the trader. The complaint can also be filed against offer

for sale of goods hazardous to life and safety when used.

4. Rectification: In this paragraph, you should highlight what attempts you have

made to set the things right i.e. personal visits or negotiations, communication in

writing if any, whether any legal notice was served and/or whether you have ap-

proached any other agency for redressed like MRTP Commission, Civil or Crimi-

nal Court of competent jurisdiction. Mention the stages of its proceedings and its

outcome, along with copies (preferably certified) of such proceeding. The nature

of response you got from the trader when irregularities were brought to his notice

should also be disclosed here.

5. Evidence: In this paragraph, you should give details of documents and/ or wit-

nesses you will rely upon to substantiate your case. The documents attached as

annexure as stated above may be incorporated in a proper list and a list of wit-

nesses (if any) may be filed. Each of the annexure should be attested as ‘true

copy’.

6. Other provision: In this paragraph, you should make reference to any other law

or rule regulation of a particular procedure which are applicable to the case and /

or which the trader has violated and consumer’s rights under the same. There are

incidental statutory obligations which the traders have to fulfill and in case of any

failure to do so, the case in prime facie is made out and the forum takes cog-

nizance.

37

7. Jurisdiction: In this paragraph, you should liquidate the claim in the complaint,

i.e. state what amount you expect to receive and set out the pecuniary jurisdiction

of the Forum/State Commission/National Commission, as the case may be. The

territorial jurisdiction should be highlighted to obviate any formal objection.

8. Limitation: You must mention the present complaint is being filed within the pe-

riod prescribed under Section 24A of the Act.

9. Relief claimed: In this paragraph, you should describe the nature of relief you

want to claim, be it for removal of defects in goods or deficiency in services, re-

placement with new goods, return of the price or charges, etc. paid and/or com-

pensation on account of financial loss or injury detrimental to your interest occa-

sioned by negligence of the opposite party and explain how you have calculated

the amount of the compensation claimed.

10. Prayer clause: It is therefore, most respectfully prayed that this Hon’ble

Forum/Commission may kindly be pleased to……………

11. (Details of relief’s which you want court to grant)

Place ………………….

Date……………………

Complainant

Through (Advocate or Consumer Association, etc.)

Verification

I, …………………….., the complainant above named , do hereby solemnly verify that

the contents of my above complaint are true and correct to my knowledge . No part of it

is false and nothing material has been concealed therein.

Verified this on………… day of ………..20……………at…………..

Complainant

Note: Although it is not compulsory, you may file an affidavit in support of the

complaint, which adds to the truth and veracity of allegations and gives credibility to

the cause. You need not do it on a stamp paper but should get it attested from an Oath

Commissioner appointed by a High Court. The format is simple.

38

LIST OF CONTRIBUTORS

1) Akshi Rastogi

2) Ananya Anantharam

3) Anarghya K Chander

4) Aradhya Sethia

5) Atulaa Krishnamurthy

6) Basvanagouda Patil

7) Gargi Rohi

8) Gaurav Bhawnani

9) Ipshita Bhuwania

10) Janhavi Venkatram

11) Manasa Sundarraman

12) Mathavi Senguttuvan

13) Padmini Baruah

14) Shruthi Naik

15) Spadika Jayaraj

16) Vansh Gupta

17) Zara Kaiser

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