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Section 2 (d) of the Consumer Protection
Act, 1986, defines ‘consumer’ as any person who-
(i) buys any goods for a consideration which has been paid or promised or partly
paid and partly promised, or under any system of deferred payment and includes
any user of such goods other than the person who buys such goods for
consideration paid or promised or partly paid or partly promised, or under any
system of deferred payment when such use is made with the approval of such
person, but does not include a person who obtains such goods for resale or for
any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or
promised or partly paid and partly promised, or under any system of deferred
payment and includes any beneficiary of such services other than the person who
1[hires or avails of] the services for consideration paid or promised, or partly
paid and partly promised, or under any system of deferred payments, when such
services are availed of with the approval of the first-mentioned person.
Legal terminology apart, every human being at some point or other, has donned
the role of a consumer in his/her lifespan. When we buy an electric appliance
for the home, get the monthly ration or buy a brand new car- we become
consumers. When we pay some fees to a doctor for the medical services provided
by him/her, when we pay the telephone bill or when we post a registered letter-
we become consumers of the doctor, telephone department and the postal services
respectively.
Thus it would not be an exaggeration to point out that the Consumer Protection
Act, 1986, is one of the most important legislations that governs the life of
every human being in his transactions with the society for availing goods and
services provided by others. It not only comes into daily use but prevents the
exploitation of common man, the consumer, at the hands of the affluent and
moneyed business man or service provider. Hence any change or amendment
whatsoever, in the Act directly affects the common people thereby needing a
close scrutiny of the amendments thereto.
This paper seeks to take a look at some of the most profound amendments to the
Consumer Protection Act, 1986 brought about by the Consumer Protection
(Amendment) Act, 2002, the subsequent repercussions of those respective
amendments, the shortcomings which have still not been rectified despite the
amendment and also the benefits that are resultant of certain amendments.
Some major loopholes of the Act still left unplugged by the 2002 Amendments are
discussed here:
1) One of the biggest achievements of the Consumer Protection (Amendment) Act,
2002, was the conferment of First Class Magistrate’s powers to the Consumer
Forums or Commissions
The main problem regarding the above empowerment and the relevant provision is
the fact that the Gazette notification for the conferment of First Class
Magistrate’s powers to the Consumer Forums or Commissions is still not issued.
Thus it is practically impossible for the Forums or Commissions to exercise this
power conferred by the Act.
2) Another lacuna present in the amended Act is the relatively softer approach
adopted by the Act towards the judgment debtor in its certain provisions. The
amendment of 2002 has not done anything concrete to fill this lacuna. For
instance, S. 24 of the Consumer Protection Act, 1986, which reads as follows:-
S.24: Finality of order:-
Every order of a District Forum, State Commission or the National Commission
shall, if no appeal has been preferred against such order under the provisions
of this Act, be final.
Thus this provision implies that non- preferment of appeal renders the order
final. Conversely, preferring an appeal means that order is not final. Hence
once an appeal is preferred by the judgment debtor, he gets a stay against the
execution and thus there cannot be any execution.
The judgment debtors have certainly misused
this provision of the Act. It is a general pattern that judgment debtors just
buy time before the Forum or Commission stating that appeal has been preferred.
Even if the appeal is not admitted and may take quite some time for the purpose,
even if the required bank guarantee is yet not given and the stay is still not
granted, the consumer cannot get the execution of the original order done. Thus
justice still eludes the hapless consumer while the seller (judgment debtor)
more often than not manages to get adjournment. The Act is silent regarding a
‘stay order’. Even the Amendment Act of 2002 disappoints in this regard. This
Section urgently calls for amendment substituting the words “appeal preferred”
with the words stay
granted.
3) Another important confusion is created by the amended S.25 of the Act that
reads as under:
S.25: Enforcement of orders by the Forum, the State Commission or the National
Commission:-
(1) Where an interim order made under this Act, is not complied with the
District Forum or the State Commission or the National Commission, as the case
may be, may order the property of the person, not complying with such order to
be attached.
(2) No attachment made under sub-section (1) shall remain in force for more than
three months at the end of which, if the non-compliance continues, the property
attached may be sold and out of the proceeds thereof, the District Forum, or the
State Commission or the National Commission may award such damages as it thinks
fit to the complainant and shall pay the balance, if any, to the party entitled
thereto.
(3) Where any amount is due from any person under an order made by a District
Forum, State Commission or the National Commission, as the case may be, the
person entitled to the amount may make an application to the District Forum, the
State Commission or the National Commission, as the case may be, and such
District Forum or the State Commission or the National Commission may issue a
certificate for the said amount to the Collector of the district (by whatever
name called) and the Collector shall proceed to recover the amount in the same
manner as arrears of land revenue.
If we carefully give a perusal to the above
provisions of the above section, we find that by virtue of S.25 (1) the
provision of attachment is against the interim order and not the final order.
But looking at the pattern of judgments, it can be clearly discerned that
generally attachments are aimed at awarding compensation to the aggrieved party,
mostly the consumers. Compensations are usually awarded as part of the final
order and the interim order almost never awards compensation. Interim orders aim
at compelling or restraining any agency for the commission or omission of some
act but these interim orders are seldom used by the Forums or Commissions to
attach or seal the property of any business person, manufacturer, banks, medical
establishments, etc. for the simple reason that the Forums/ Commissions are not
aware if there will be any compensation order against them at the conclusion of
the proceedings before Consumer Protection Agencies. Since no recovery
proceeding is provided under the Act, there cannot be any assessment of the dues
and thus no interim attachment order. Thus a more practically feasible approach
would be to replace the word interim order with
all orders.
4) Also S. 25 (3) provides for issuance of a certificate to the Collector for
recovery of the amount due from any concerned person. The consumers have to
contact the Collector for recovery of their dues because there is no further
provision as to what is the role of Consumer Forums/ Commissions after that.
After a long wait for the order from the Forum, the hapless consumers still have
to undergo the rigor of going to the collector for the realization of the dues.
There is no clarity regarding who is responsible for the follow up with the
revenue department and the stipulated time limit thereto. Thus the concerned
provision of S. 25 (3) should provide for the revenue department to send the
arrears to the Forum itself for reimbursement to the consumer.
Thus an amendment is required to take care of the afore-mentioned problem.
However while critiquing certain provisions of the Act, at the same time it is
necessary to point out certain other provisions which are the product of the
2002 Amendments and have plugged many loopholes by their progressive wording.
These provisions brought about by the amendment have gone a long way in doing
away the perennial problems of delay.
1) Amendment to Section 11 enhances the jurisdiction of the District Forum to
entertain complaints where the value of the goods or services and the
compensation claimed does not exceed rupees twenty lakhs. This will be more
convenient for the complainants and also reduce the number of complaints filed
with the State Commission and National Commission.
2) Section 12 is substituted to provide that every complaint filed with the
District Forum shall be accompanied with such amount of fee as may be
prescribed. It also provides that the admissibility of the complaint shall
ordinarily be decided within twenty-one days from the date on which the
complaint is received and that once admitted a complaint shall not be
transferred to any other Court or Tribunal. This will help to quicken disposal
of complaints.
3) The amendments to section 13 require the District Forum to refer a copy of
the admitted complaint within twenty-one days from the date of its admission to
the opposite party to give his version within the prescribed time. It also
provides the much needed provision for ex parte order as well as dismissal of
complaint on non-appearance of complainant.
It includes a new sub-section (3A) to provide that complaint shall be heard as
expeditiously as possible and endeavour made to decide the complaints within the
prescribed period. Adjournments would ordinarily not be granted, and if granted
for reasons to be recorded in writing by the forum, an order as to the costs
occasioned by the adjournment would also be made by the forum. It is also
provided that in the event of a complaint being disposed of after the period so
specified, the District Forum shall record in writing, the reasons for the same
at the time of disposing of the said complaint.
It further includes a new sub-section (3B) to enable the District Forum to pass
interim orders where required. It also includes a new sub-section (7) for the
substitution of parties in accordance with the provisions of Order XXII of the
First Schedule to the Code of Civil Procedure, 1908 in the event of death of the
complainant or opposite party.
These amendments will facilitate quicker disposal of cases, enable complaints to
get immediate relief where required to the hapless consumers. The procedural
delays will be done away with.
4) New section 19A provides that endeavour shall be made to dispose of appeals
filed before the State Commission or the National Commission within ninety days
from the date of admission.
These are just some of the useful amendments and the afore-mentioned list is
definitely not exhaustive. In fact all the amendments made to the Consumer
Protection Act by the 2002 Amendments aim at furthering the efficiency of the
Act and doing away with procedural delays which render the consumers
disillusioned and dissatisfied. These Amendments have been fruitful in providing
‘protection’ to the consumers in the real sense of the term and served the
purpose of the Act. It is hoped that further amendments would aim at even more
efficiency and render the position of the consumers much stronger in this era of
globalization and privatization where the sudden unchecked advent of Multi
National Companies has to be balanced with the protection of the rights of the
consumers by the legislature and the judiciary.
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The author can be reached at :nehadas@legalserviceindia.com
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Consumer
Protection Act, 1986: 2002 Amendments- Laurels and Loopholes
