Product Liability law provides the consumer with a legal remedy for any injuries
suffered by him from a defective product. It is estimated that millions of
people all around the globe are negatively affected by defective products where,
the seller or manufactures end up paying large number of damages. A product is
required to meet the ordinary expectations of a consumer; therefore,
responsibility lies with the manufacturers and the sellers to ensure safety and
quality of the product as per description. This, however, has not always been
The modern markets for consumer for goods as well as services have undergone
drastic transformation with the emergence of Global supply chains, International
Trades and rapid development of e-commerce have not only made plethora of
products and services available in the markets all over the globe but also new
delivery systems, options and opportunities for Consumers.
The transition from "Caveat Emptor" to "Caveat Venditor
" where the "Seller" and
not the "Buyer" have to be beware about the product seems to be subjective all
around the world.
This research is an attempt to trace the Legislations of 'Product Liability'
globally (specifically India, USA, UK and Germany) and the subject matter
regarding the onus of proof.
Legislations in India
In Indian scenario, The Consumer Protection Act, 1986, the only law aimed to
serve the interest of consumers, the clause of product liability was nowhere
mentioned in this act. Whereas, the disputes pertaining to liability of the
product was covered under the Tort Law i.e., Strict Liability and the Sales of
Goods Act, 1930, the Indian Penal Code, 1860 and some specific statutes related
to specific goods and of certain standardizations.
The continuing disagreements regarding the Liability of Products, and the
various cases constructing the question of Law, The Indian Ministry of Consumer
Affairs, Food and Public Distribution took a charge and amended the Consumer
Protection Act, 1986 (Now CPA, 2019) which included a specific and detailed
clause of "Product Liability" (Section 82).
CPA 2019 defines product liability as "the responsibility of a product
manufacturer or product seller, of any product or service, to compensate for any
harm caused to a consumer by such defective product manufactured or sold or by
deficiency in services relating thereto".
As mentioned in the CPA, 2019, "A product liability action may be brought by a
complainant against a product manufacturer or a product service provider or a
product seller, as the case may be, for any harm caused to him on account of a
According to CPA, 2019, a product manufacturer can be held liable if; the
product contains a manufacturing fault or defect; or the product's design is
defective; or where there is deviation from manufacturing specifications; or the
product's express warranty does not abide by it; or the product lacks adequate
instructions of correct usage to prevent harm or improper usage.
Further, product service provider can be held liable if; service provided by him
was deficient or imperfect or faulty or inadequate in quality, nature or manner
of performance which is required to be provided in accordance with the
pertaining law or as mention explicitly is the contract or; withholding of
necessary information or act of omission or negligence which caused the harm or;
lack of adequate instructions which may cause harm further or; the service does
not abide by the express warranty or the terms and conditions of the
Also, the product seller can be held liable if; he exercised a considerable
control over the designing, testing, manufacturing, packaging or labelling of a
product that caused the harm or; he altered or modified the product in such a
manner which primarily caused the harm or; Independently made an express
warranty other than of the manufacturer and failed to comply with it or; the
product sold by him does not have identity of any manufacturer or if have,
service of notice or warrant or process cannot be effected on him or he is not
subjected to law pertaining in India or; he failed to execute reasonable care in
assembling, inspecting or maintaining such product or withholding of necessary
information given by manufacturer regarding the dangers and improper usage of
the product which further was the proximate cause of the Harm.
After conversation with some of the primary officials of CCPA and NCDRC about
the No. of Cases being registered for product liability and over its pendency,
they argued over a point that there are no cases registered for product
liability after the amendment of consumer protection act, 1986 (Now CPA, 2019).
But the point they constantly overthrowing was that of the increase in No. of
cases being registered for the matter related to E-commerce and insurance policy
(aftermath of the COVID-19 outbreak).
Also, there are some exception, for which the product liability action cannot be
brought against the product seller if:
Legislations in United States of America
- At the time of harm, the product was altered, modified or misused or;
- Product Manufactures will not be liable even after the failure to
provide adequate information or warning if, it was purchased by an employer
for use at the workplace and the product manufacturer made him aware of
instructions and warning or, the product was sold as a component or material
to be used to create finished good, and the harm was the proximate of the
finished product or, the product caused harm was legally meant to be used
under the supervision of an expert and the product manufacturer informed
them about the warning and necessary instructions or, the user of the
product was under the influence of alcohol or any prescribed drug (not by
In USA, the consumer cause of action is based on:
- Breach of Warranty and
- Strict Liability.
Negligence means that the manufacturer or
any of them in the chain of production or manufacturing did not exercised with
reasonable or due care for the safety of the design and manufacture of product,
which further caused harm to consumer. What constitutes "Reasonable or due care"
entirely depends upon the nature of the product and to what extent harm can be
caused by the product.
Warranty is an expressed or implied contract between the manufacturer or vendor
to its customers concerning the fitness or durability the product. For example,
When an Individual buys a washing machine and the seller provide him with a
written statement of warranty, this is expressed, but if there is no such
statement made rather, the seller implicitly warrants for the fitness of the
product, this is implied. Hence, if the manufacturer of vendor is unable to
fulfil the promise made or claim or representation, he may be liable for the
damages. Warrant claims are contractual and are based upon the Article 2 of
Uniform Commercial Code as adopted by each state in USA.
Strict Liability makes a manufacturer or vendor responsible for all the injuries
caused by the defective product that is unreasonably dangerous to him, or any
other person or his or her property or body.
The burden of proof lies upon the plaintiff to prove all the elements of the
case, for example, if the plaintiff suffered from a harm due to negligence of
the manufacturer, he must prove that the manufacturer failed to use reasonable
and due care, which further breached the duty and caused the harm.
Legislations in United Kingdom
As a common law country, the legislations in UK are somewhat similar to that of
India but Indian legislations have been specified and amended. The UKs main
legal basis for product liability lies in the:
- Consumer Protection Act, 1987,
- Negligence and
The EU Product Liability Directive [85/374/EEC] (PLD) was transposed into UK law
by the CPA. This imposes strict liability for defective products (sometimes
described as no fault liability
) which have caused injury or damage to private
property (excluding damage to the product itself).
Further for Negligence, this is fault based. The plaintiff has to proof that the
harm he or she caused resulted from the defective product and the absence of
reasonable or due care.
In Contract, the claimant would need to show that the contract has been breached
by the defendant for the sale of the product and have breached the express or
implied term of the contract which further caused loss to the claimant.
The defences available at the part of the defendant is to prove that there was
not causal link between the breach of duty and the risk of a product. Further,
Contributory Negligence and Voluntary assumption of risk can also be helpful as
Legislations in China
In China, the Product Quality Law is a unified statue which governs product
liability claims. Article 41 of this legislation imposes Strict Liability on the
producer for the defective product. This means that the product manufacturer may
be held liable without any fault for the defective product, therefor following
the link between the breach of duty and the harm caused.
Producers can only be escape from liability under one of the following
circumstances stipulated in paragraph 2, article 41 of the Product Quality Law
- the product has not been put into circulation;
- the defect causing the damage did not exist when the product was put
into circulation; and
- the level of science and technology at the time that the product was put
into circulation was not sufficient to detect the existence of the
Contrarily, under Article 42 of the Product Quality Law, the seller of a
defective product is falsely held accountable and proof of the seller's intent
or ignorance is required in order to hold the seller culpable. Nevertheless,
even though the seller's innocence can be proven, article 42 also states that
the seller is responsible for paying damages if it is unable to locate the
manufacturer or supplier of the defective product.
Further, all the countries mentioned above (except India) does not have a
specific legislation pertaining to the liability of product. They've primarily
opted for the "Strict Liability" rule (also referred to as 'no fault
liability'), or "Negligence". Only India have specific clause of Product
Liability, which in turn was bought up by an amendment to the Consumer
Protection Act, 1986 (Now CPA, 2019).
Also, in the all the countries, the onus of proof lies on the plaintiff, where
he will have to showcase all the facts of the case pertaining to defective
product, but the question which arises is if the rule of "Strict Liability" is
implemented, the manufacturer or seller can be falsely made liable? so it needs
a viable check and balance between the breach of duty, causation and the law.
Further, in India, where there is specific legislation for liability, the
question arises that whether it is successfully implemented and are reached to
logical conclusions or are pending? But after interaction with the officials of
Central Consumer Protection Authority (CCPA) about the cases being registered
after the amendment for Product Liability, they denied that such cases had not
been registered after the amendment.
So, no data was available for the same. Further, after bunch of mails and calls
regarding the data related to other clauses, I got no response, and no data was
available on the official website for the same, which also signifies that the
CCPA is not fully functional and transparent. To conclude, an effective
implementation of legislation also depends upon effective working of the
institutional authorities and making public aware about the law and their
- CPA, 2019
- CPA, 2019
- CPA, 2019
- CPA, 2019
- CPA, 2019
Comparison: UK v/s India Product Liability Law
Let the Seller be Aware: Product Liability under Consumer Protection Act,