CONSUMER PROTECTION ACT AND POWERS OF CONSUMER
FORUMS FOR EXECUTING ITS ORDERS:
Consumer Protection is a group of laws and organizations
designed to ensure the rights of consumers as well as fair trade competition
and the free flow of truthful information in the marketplace. The laws are
designed to prevent businesses that engage in fraud or specified unfair
practices from gaining an advantage over competitors; they may also provide
additional protection for the weak and those unable to take care of themselves.
Consumer protection laws are a form of government regulation, which aim to protect the rights of consumers.
For example, a government may require businesses to disclose detailed
information about products—particularly in areas where safety or public health
is an issue, such as food. Consumer protection is linked to the idea of
consumer rights, and to the formation of consumer organizations,
which help consumers make better choices in the marketplace and get help with consumer complaints.
Other organizations that promote
consumer protection include government organizations and self-regulating
business organizations such as consumer protection agencies and organizations,
the Federal Trade Commission, ombudsmen, Better Business Bureaus,
etc.
CONSUMER LAW:
Consumer protection
law or consumer law is considered an area of law that regulates private law relationships
between individual consumers and the businesses that sell those goods and
services. Consumer protection covers a wide range of topics, including but not
necessarily limited to product
liability, privacy rights, unfair business practices, fraud, misrepresentation, and other consumer/business interactions.
In India, the Consumer Protection Act of 1986 is
the law governing consumer protection. Under this law, Separate Consumer
Dispute Redressal Fora have been set up throughout India in each and every
district in which a consumer [complaint can be filed by both the consumer of a
goods as well as of the services] can file his complaint on a simple paper with
nominal court fees and his complaint will be decided by the Presiding Officer
of the District Level. Appeal could be filed to the State Consumer Disputes
Redressal Commissions and after that to the National Consumer Disputes Redressal Commission (NCDRC).
The procedures in these tribunals are
relatively less formal and more people friendly and they also take less time to
decide upon a consumer dispute, when compared to the years long time
taken by the traditional Indian Judiciary. In recent years, many effective judgement have
been passed by some state and National Consumer Forums.
Ever since the act has come into force, a lot of hue and
cry over the authority of the forums among big business houses was made. The
Apex court through its various pronouncements gave broader description and
wider scope to the act but at the same time it also faced numerous
problems and several attacks. Even the act itself was challenged in the
year 1996 before the court of law and its legal validity was questioned when a
big business man was ordered to be sent to jail for non compliance of its order
. The questions were raised as to whether Lok Sabha is empowered to pass
such an act by which consumer forums could run as a parallel
judicial system against the civil courts with much more
discretionary powers. The matter was finally resolved by the Apex court in a
case of Vishwabharti
house building co-operative society v Karnataka state & others SC 2002, AIR 2003 SC 1043, 2003 (2) ALT 22 SC and the Supreme Court held that
the Consumer Protection Act is a constitutionally valid law passed by the Lok
Sabha, and parliament is competent to pass such welfare Act. Further, the
forums constituted under this act are competent to perform their work assigned
to them in all respects .These forums can also invoke the provisions of section
27 of the act for execution of their order.
Legal issues raised in
the above case were as hereunder:
1.
Act is unconstitutional running as parallel judiciary to
civil courts which is against the provisions of constitution .
2.
Order of the consumer forum should be sent for execution under
sec 25 to civil court ,sec 27 of the act is illegal
High Court of
Karnataka held:
1.
Act not unconstitutional
2.
order for compliance should be sent to civil court for execution
Supreme Court held:
1.
Act is made under the provisions of the constitution vii
schedule ,list i ,ii & iii Article 246 part- 11 wherein it is said that
parliament can constitute any judicial system other than Supreme court &
High court
2.
Since procedure is laid down in the act itself under sec. 13 as
a summery procedure and accordingly execution is also to be done under summery
procedure Hence sec. 27 is very much valid. Sec. 25 is an option to the
consumer whether want to go to civil court or not.for execution of the order
passed by consumer forum
NOTE:
Sec.25 & 27 were given elaborate explanation in amendment 2002 after this
judgement
Consumer
became a king after this judgement and Apex court also by its numerous judgments
further strengthened the forums by giving more teeth to this act . At times new
dimensions are given through certain important pronouncements which made
a history and which have become precedence for future cases of similar
nature under the similar circumstances.
Just after this judgement , supreme court of India cleared a big
obstacle coming in the way to haul up medical professionals in medical
negligence cases .In a case of Dr J.J. Merchant and others v/s Shrinath Chaturvedi CTJ 757SC[CP],
doctors had attacked swearly on the competency of the forums to deal with the
professional matter where members of the forums are not expert in the medical
area .While deciding this case in the year 2002 , Apex court made very
important points clear :
“that
consumer forum can take evidence ,cross evidence through affidavits, can
appoint local commissioner and can obtain expert opinions on the subject
” and set the controversy at rest. It further said that three members in the forum
can at the most be expert in three areas only and it would be an
impossible situation for any court to decide the cases if experts in every
field are desired to be there among judges
Number
of other cases following this judgement further confirmed the medical
profession answerable to consumer courts
Again
in the year 2005 ,a criminal case against doctor got wide publicity for
the reason Supreme court had drawn demarcation line between the remedy in civil
case and criminal case .It was held that the yardstick to scale the negligence
in civil compensation case before consumer court and case before criminal court
cannot be the same .A case which could not be successful before criminal court
cannot be said to be unsuccessful before consumer court also. It was further
held that the role of medical association is disciplinary in nature and does
not compensate the aggrieved consumer .Hence professional in the field of law
,medical, chartered accountants etc are all liable to be questioned for
deficiency in services .
Still
another jolt came to the consumer courts when Martin D’souza v/s Mohd Ishfaq
case in 2009 had put a big barrier on admission of medical negligence
cases before consumer courts by making expert opinion mandatory before sending
notice to the respondent. The issue had brought a flood of objections and
appeals from the affected groups. But once the Supreme Court decided that no
notice was to be given to doctors before expert opinion, it became binding for
all lower courts. Now the same Apex court has reversed its stand by another
pronouncement on 8th March 2010 in the matter of V Krishna Rao v/s Nikhil Super
Speciality Hospital & others by holding that:
“Expert
opinion is needed to be obtained only in appropriate cases of medical
negligence and the matter may be left to the discretion of the consumer forums
especially when the retired judges of Supreme Court and High courts are
appointed to head the National Commission and State Commission”
While saying so, the Apex court referred to the earlier decision
of this court pronounced by the larger bench comprising three judges bench in
the matter of Dr J.J. Merchant and others v/s Shrinath Chaturvedi 2002 CTJ 757SC[CP]
and expressed its opinion that the general guidelines given in Martin D’souza
case are contrary to the findings of the Supreme court’ larger bench.
The court now notes:
“The
general directions given in para 106 in D’Souza case to have an expert evidence
in all medical cases is not consistent with the principle laid down by the
larger bench accepted as position that only in appropriate case, expert opinion
may be made and the matter is left to the discretion of consumer forums and
commissions”
Not
only this, the order has also been found contrary to the doctrine of ‘Res Ipsa
Liquatur’ discussed in detail in the first landmark judgement pronounced by
three judges bench in the matter of Indian medical association v/s V.P.Shantha
& others 1995 CTJ 969SC{cp}
A
great deal has been done by the supreme court of India in strengthening the
forums ,but forums are still struggling for their survival for various reasons.
Consumer forums are over-burdened with number of cases having
inadequate infrastructure This over burden is not
only due to consumer awareness but also due to some delaying tactics adopted by
the litigating parties during the proceedings .It is unfortunate but true
to remark that more than 50% consumer cases are fought by advocates and they
have made consumer forums like civil court by taking adjournments, sending
proxy with no preparation or clerks coming for date. Presidents of the forums
being retired judicial persons also have their mind set tuned to civil
procedure code ,go more with the tendency of advocates rather than coming to
the level of consumers to make the forum friendly court Advocates
promptly refer to the application in their hand about Order so and so,
Rule so and so read with sec 151 of CPC Application accepted ,copy given to the
complainant for comments Poor consumer is in a flux-does not know what is Order
and Rule of CPC and on the next date comes with advocate .No president
discourages advocates from quoting CPC provision when
provisions of consumer protection act as well as judgments pronounced by the
supreme court clearly bar to refer CPC provision when procedure before the
forum is specified under sec 13 of the act.. But retired judges appointed as
presidents feel friendly with advocates rather than consumers
appearing in person and subsequently consumer forums are now functioning
like civil court presided over by the presidents with such attitude
.This was really not desired ,neither is the intention of this welfare
legislature
The
posts of Members and Presidents remain vacant for a longer period and even if
selection process is over, joining takes months together waiting for the
selected candidates to retire from their posts in the civil court
The
present situation is not only against the interest of consumers but also is in
inconsistency of the law laid down by the Hon’ble Supreme court
The
debate is ripe now on the issue as to whether sitting judges should apply for
the posts in tribunals or not .The issue is taking momentum for the reasons
–firstly sitting judges may try to influence the selection process and
secondly if their tenure is yet to be over, they make the department wait for
their retirement. Justice R S Sodhi ,former Delhi High court judge feels
judges applying while still in service denigrate the judicial system. Sharply
criticizing this phenomenon Justice Sodhi said ‘this is the crisis of morality
within the judiciary .Its so deep that we have a situation where judges are
vying with each other for a post after retirement . Ideally, in my view a
sitting judge should never apply. What kind of judicial independence we are
talking about if judges start applying like this with the government”
Let
us all hope , redressal agencies as well as Government takes a note of it and adequate measures are
taken to make consumer forums better.
Does Consumer Protection Act
provide for execution of the order?
Yes, the Consumer Protection Act
has laid down the manner in which an order passed by a consumer courts can be
executed (Section 25 of the Act). According to the Act, if any
person does not comply with the order passed by the consumer forum, then the
forum may order the property of the person to be attached.
If the party against whom the order is passed does not comply
with the order within three months, then the forum may direct sale of the
attached property and may award damages to the complainant and pay the balance,
if any, to the opposite party.
Is there a penalty for not
executing the order passed by the consumer forum?
Yes, the Act has also made
provisions for penalties in case the order passed by the forum is not respected
(Section 27 of the Act).
If the party against whom the order is passed does not comply
with an order made by the Consumer forum, then such person may be punished with
imprisonment or fine or both.
The limits for
penalties are as under
Penalty
|
Minimum
|
Maximum
|
Imprisonment
|
1
month
|
3
years
|
Fine
|
Rs
2000
|
Rs
10000
|
In the said case, among other things, the Court considered the
interpretation of Section 25 of the Consumer Protection Act (Execution of
Order) in detail. We highlight the key points outlined in the judgment that
help us arrive at suggesting the next steps.
Whether an order passed by a
Consumer Forum needs to be sent to a civil court for execution?
No, the same is
not required. Consumer Forum is empowered to execute the orders passed by it as
laid down under Section 25 of the Act. In the above mentioned case, the High
Court’s earlier interpretation was set aside.
Section 27 of the Consumer Protection Act also confers
additional powers on the Forum to execute its order. Section
27 gives similar power as in civil proceedings to a Civil Court (i.e. Contempt
of Court, Code of Civil Procedure etc). It is a well settled law that
every Court that can adjudicate a dispute and pass an order. It also has
the power to implement its order.
Thanks
Dr.Zulfiqar Ali Khan
Advocate & Commissioner of Oaths
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