CONSUMER PROTECTION ACT AND POWERS OF CONSUMER FORUMS FOR EXECUTING ITS ORDERS:

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

Case Law analyzed -‘State Of Karnataka vs Vishwabarathi House Building’

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