What do you do if a consumer case against you ?Let us glance through the relevant information about Consumer Protection Act, 1986.
What is COPRA or CPA or CPA-1986?Popularly Consumer Protection Act, 1986 is called as COPRA,also know as CPA or CPA-1986.
Why such a law has been enacted ?The Consumer Protection Act was passed in 1986 with a view to provide for better protection of the interests of the consumers. The Act makes provisions for the establishment of Consumer Protection Councils and other authorities such as Consumer Disputes Redressal Forums at the National, State and District levels for speedy and simple settlement of consumer disputes.
What are the salient features of the Act?The Act recognises the right of the user other than the buyer also to sue the manufacturer by defining the word consumer to include user also.
It empowers an individual consumer or a recognised consumer. Association whether the consumer is a member of such association or not to file a complaint in respect of affective goods or deficient services.
It covers not only goods as defined under the Sale of Goods Act, 1930 but also services including services provided by public sector undertakings and government departments such as banking, financing, insurance, transport, processing, supply of electrical or other energy etc.
It defines the rights of consumers. They include:
the right to be protected against the marketing of hazardous goods;
the right to be protected against unfair trade practices;
the right to be assured access to a variety of goods at competitive prices;
the right to be heard and to be assured that their interests will receive due consideration at appropriate forums;
the right to seek redressal against unfair trade practices or exploitation and
the right to consumer education.
It provides for the establishment of advisory bodies at the Central and State levels to be known as Central Consumer Protection Council and the State Consumer Protection Councils with the object of promoting and protecting the rights of consumers.
It provides for the establishment of quasi-judicial bodies for the redressal of the grievances of consumers at the District, State and Central levels known as District Forum, State Commission and National Consumer Disputes Redressal Commission
It lays down the procedure to be followed in redressing consumer grievances and provides a time limit for the disposal of their complaints.
It empowers the District Forum to issue orders to the opposite party to remove the defect from 'the goods or to replace the goods or to return the price or charges paid and or to pay compensation for any loss or injury suffered by the consumer due to the negligence of the opposite party, in respect of defective goods or deficient services.
It empowers the District Forum, the State or the National Commission to enforce its order in the same manner as if it were a decree or order made by the Court, and in the event of its inability to execute it, to send such order to a court of competent jurisdiction for its execution.
It empowers the forum or commission to impose a sentence of imprisonment of not less than one month extending to 3 years or with a minimum fine of Rs. 2,000/- extending upto Rs.10,000/- or with both, for failure to comply with any order made by it.
The 1993 amendment has empowered the forum or commission to order payment of compensation by the complainant to the opposite party if the petition appears to be frivolous or vexatious in nature. The amount shall not be more than Rs. 10,000/-.
Who can file a complaint?A consumer or any recognised consumer association, i.e., voluntary consumer association registered under the Companies Act, 1956 or any other law for the time being in force, whether the consumer is a member of such association or not, or the central or state government.
Who is a consumer?A consumer is a person who 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 hires or avails of the services for consideration paid or promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. This definition is wide enough to include a patient who merely promises to pay.
What is a complaint?A complaint is an allegation in writing made by a complainant, i.e., consumer that he or she has suffered loss or damage as a result of any deficiency of service.
What is deficiency of service?Means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
Where to file a complaint?In the district forum if the value of services and compensation claimed is less than one lakh of rupees; before the state commission, if the value of the goods or services and the compensation claimed does of the goods or services and the state commission, the compensation does not exceed more than twenty lakhs of rupees. In the national commission, if the value of the goods or services and the compensation exceeds more than twenty lakhs of rupees.
What is the cost involved in filing a complaint?There is no fee for filing a complaint or appeal before the different consumer redressal forums.
Is there any provision for appeal?Appeal against the decision of the district forum can be filed before the state commission, from the state commission before the national commission and from the national commission to the Supreme Court. The time limit within which the appeal should be filed is 30 days from the date of the decision in all cases.
What are the powers of the consumer redressal forums?the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;
the discovery and production of any document or other material object producible as evidence;
the reception of evidence on affidavits;
the summoning of any expert evidence or testimony;
the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
issuing of any commission for the examination of any Witness; and
any other matter which may be prescribed.
What is the supreme Court's decision?Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1)(0) of the Act.
The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.
A 'contract of personal service' has to be distinguished from a ,contract for personal services'. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a contract of personal service'. Such service is service rendered under a 'contract for personal services' and is not covered by exclusionary clause of the definition of 'service' contained in Section 2(1)(0) of the Act.
The expression 'contract of personal service' in Section 2(1)(0) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to the employer under the contract of employment would be outside the purview of 'service' as defined in Section 2(1)(0) of the Act.
Service rendered free of charge by a medical practitioner attached to a hospital/nursing home or a medical officer employed in a hospital/nursing home where such services are rendered free of charge to everybody, would not be "service" as defined in Section 2(1)(0) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
Service rendered at a non-Government hospital/nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service, is outside the purview of the expression 'service' as defined in Section 2(1)(0) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
Service rendered at a non-government hospital/nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression service as defined in Section 2(1)(0) of the Act.
Service rendered at a non-Government hospital/nursing home where charges are required to be. paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in Section 2(1)(0) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be "service" and the recipient a "consumer" under the Act.
Service rendered at a Government hospital/health centre/ dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service is outside the purview of the expression service' as defined in Section 2(1)(0) of the Act. The payment of a token amount for registration purpose only at the hospital/ nursing home would not alter the position.
Service rendered at a Government hospital/health centre/ dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression 'service' as defined in Section 2(1)(0) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act.
Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of ' service' as defined in Section 2(1)(0) of the Act.
Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under Section 2(1)(0) of the Act.
If multiple respondents reside in different jurisdictions, which consumer forum has the jurisdiction to entertain the petition and adjudicate the matter ?
The Consumer Protection Act states that incase a complaint is being filed against more than one respondents and some of them are not residing within the jurisdiction of the Commission in which the complaint is instituted, the permission of the complainant needs to be taken. However, in case the complainant has not taken permission, the Commission has the power to grant such permission at a later stage. If, however the opposite party has accepted the jurisdiction of the forum, even by implication, he would be estopped from raising any objection at a later stage.
What is the procedure for making complaint ?Section 12 of the Consumer Protection Act lays down the manner in which a complaint shall be made. The section states that a complaint in relation to any goods sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by:
The consumer to whom such goods are sold or delivered or agreed to be sold or delivered ro such service provided of agreed to be provided;
Any recognized consumer association whether the consumer to whom the goods sold ro delivered or agreed to be sold or delivered pr service provided or agreed to be provided is a member of such association or not;
One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of , or for the benefit of, all consumers so interested; or
The Central or State Government.
On the receipt of the complaint, the District Forum has to refer a copy of the complaint to the opposite party mentioned in the complaint directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the Forum. In case the opposite party, on the receipt of the complaint referred to him denies or disputes the allegations contained in the complain, or omits or fails to take may action to represent his case within the time given by the District Forum, the District Forum has to proceed to settle the dispute in the manner provided in the Act.
To sum up, on the receipt of the complaint, the District Forum should:
Give notice to the opposite party
The notice should be accompanied with the copy of the complaint
The opposite party should be given a minimum of 30 days to give his version
The period of 30 days may be extended by the District Forum for the further period, but not exceeding 15 days.
The District Forum should wait for a statutory period of 30 days from the date of notice for the version of the opposite party and should not order ex parte proceedings before the expiry of the minimum period of 30 days from the notice and
Even if the opposite party fails to give his version within 30 days of the notice or the extended time, the complaint should be decided by the District Forum, after recording the evidence of the complainant on merits.
In case the complaint pertains to deficiency in service, the District Forum, as per the mandate of the Act should refer a copy of such complaint to the opposite party directing him to give his version of the cause within a period of 30 days or such extended period, not exceeding 15 days, as may be granted by the District Forum.
After the notice of the complaint to the opposite party, if the opposite party admits the claim of the complainant, the District Forum may pass the consent order in favour of the complainant provided the claim is justified on the basis of the documents and affidavits filed before the Forum. However, before passing such a consent order, the Commission has to satisfy itself, that there is no collusion and that the admissions have been made under no influence.
Section 13(2)(b) of the Consumer Protection Act lays down that if the opposite party does not respond to the notice sent to him by the Commission or denies or disputes the allegations made by the Complainant, the Commission shall have the power to decide the dispute on the basis of the evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegation of the complainant or on the basis of the evidence supplied to it by the complainant, if the opposite party does not respond to the notice of the Commission.
On the other hand, if the complainant fails to appear on the day of hearing, the District Forum has the power to either dismiss the complaint for default of decide it on merits. This is provided for in the Rules and not in the Act itself. The Commission also has the power to restore the complaint if sufficient reasons for non-appearance are given.
With regard to setting aside of ex parte orders, it has been held that if sufficient cause is shown for non-appearance of the parties, the Consumer Forum has the power to set aside the order passed ex parte.
What are the Powers of District forum ?The Consumer Protection Act vests the District forum with the powers given to a Civil Court by the Code of Civil Procedure, 1908. These are:
The power to summon and enforce the attendance of any defendant or witness and examining the witness on oath.
The authority to order for discovery and production of any document or other material object producible as evidence;
The power to receive evidence on affidavits;
The power to requisition the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
The power to issue any commission for the examination of any witness.
Moreover, the Act says that the proceedings before the District Forum shall be deemed to be a judicial proceeding within the meaning of Section 193 and 228 of the Indian Penal Code. Hence, a person giving false evidence can be punished under the Penal Code. The power to proceed against a person for contempt of court is also provided for.
After the proceedings under Section 13 are completed, the District Forum, if it is satisfied that the allegations contained in the complaint about the services are proved, shall, in the case of services direct the opposite party to return to the complainant or as the case may be, the charges paid by the complainant. It can also order the opposite party to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.
The proceedings of the District forum, as per the Act has to be conducted by the President of the Forum and atleast one member sitting together. The decision of the Forum has to be signed by the President and the other member or members sitting with him for the proceeding. If there is a split decision between the President and a member, the matter has to be referred to a third member for his opinion. The opinion of the majority then becomes the order of the Forum.
What are the rules regarding appeal ?In case any person is aggrieved by the order of the District Forum, he may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order. The State Commission, however has the power to entertain the appeal after the said period of thirty days if it is satisfied that there was sufficient reason not to file the appeal within the stipulated time.
What is he jurisdiction of State Commission ?The Consumer Protection Act, as mentioned earlier, provides for the setting up of a State Commission. This State Commission, as per the Act shall consist of a President, who shall be or has been a Judge of a High Court. There is a provision for two other members, one of whom has to be a woman. The State Commission has the jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees five lakhs, but does not exceed rupees twenty lakhs. It also has the power to entertain appeals against the orders of any District Forum, within the State. It further has the authority to summon the records and pass appropriate orders in any consumer dispute pending before any District Forum in the State or which has been decided by any District Forum if it has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. The same procedure that applies to District forums applies to the State Commissions also.
What about appeals ?Any person aggrieved by an order made by the State Commission under its original jurisdiction has the right to prefer an appeal to the National Consumer Disputes Redressal Forum. The appeal has to be filed within a period of thirty days from the date of the order. It is however provided that the National Commission may allow the appeal after thirty days if it is satisfied that there was sufficient cause for not filing within that said period.
What is the jurisdiction of National Commission ?The Consumer Protection Act provides for a National Consumer Disputes Redressal Forum. The forum consists of a President and four other members. The President has to be either a sitting or retired Judge of the Supreme Court.
The National Commission has the jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed exceeds rupees twenty lakhs. It also has the jurisdiction to entertain appeals any orders of any State Commission. Further, it has the power to call for the records and pass appropriate orders in any consumer dispute pending or decided by any State Commission, where the State Commission has acted in excess of its jurisdiction or has failed to exercise the jurisdiction vested in it or has exercised jurisdiction illegally. The National Commission also has the powers that are vested in the Civil Court, as prescribed in Section 13, Consumer Protection Act.
What about appeal ?A person aggrieved by the order of the National Commission has the right to appeal to the Supreme Court. The appeal has to be filed in the Supreme Court within thirty days of the order of the National Commission. The Supreme Court, however has the power to accept the appeal after thirty days if sufficient reasons are given for the delay. Moreover, the Act stipulates that if either of the parties do not appeal to the Appellate body, within the stipulated time, the order of the Forum shall be final.
Is there any limitation period to file a petition before the forum or preferring an appeal ?
Limitation means a legally specified period beyond which an action cannot be brought, or a property right is not to continue. The Limitation Act provides for the period within which the suit has to be filed. In addition to this, some statutes prescribe a period of limitation for certain procedures.
Before the amendment in 1993, the limitation period for filing complaints before the various fora was governed by the Indian Limitation Act. However, in 1993, Section 24A was introduced, which specifies the Limitation period.
As per Section 24 A, the limitation period for filing a complaint before the District, State or National Commission is two years from the date on which the cause of action arises. However, as mentioned earlier the fora have the power to condone the delay if they feel that there was sufficient cause for the same. The reasons for condoning the delay has to be mentioned in the records.
Is there any Court fees ?In a civil court, the suit is not maintainable unless and until the requisite court fee as per the Court Fees and Suit Valuation Act is affixed on the same. The Consumer Protection Act has done away with the requirement of a court fee. Hence, a complaint can be filed in any of the Fora without paying any court fees, which is very advantageous, unlike in the case of civil courts, where if the compensation being claimed is high, proportionate amount has to be paid as Court Fees.
However, to check that the bona fide complainant is not dragged into an appeal, vide rule 5 of the Supreme Court (First Amendment) Rules, 1990, for an appeal under Section 23 of the Consumer Protection Act before the Supreme Court, a fixed court fee of Rs.250/- is payable. There is no court fee for an appeal to the State Commission against the order of the District Forum and to the National Commission against the order of the State Commission.
What is the procedure to enforce orders of consumer fora ?The District Forum, State Commission and the National Commission have the power to execute the orders passed by them in the same manner in which a Civil Court executes a decree. If they are not able to enforce the order, it can be sent to the court within the local limits of whose jurisdiction, in the case of a company, the registered office of the company is situated or in the case of an order against any other person, the place where the person concerned ordinarily resides or carries on business or personally works for gain is situated. On receipt of such order, the Court to which the order is sent has to execute it as if it is a decree or order sent to it for execution.
Is there any remedy is a frivolous or vexatious complaint is filed ?If the District Forum, State Commission or the National Commission finds that a complaint is frivolous, they have the power to dismiss the complaint, but they have to give valid reasons for the same. Further, the complainant may be ordered to pay the costs, not exceeding Rupees Ten Thousand.