Enlarging the Judicial Blanket: Analysis of the Consumer Protection Act 2019

[By Varda Saxena]

The author is a student at the Jindal Global Law School.

Introduction

The Consumer Protection Act (CPA) of 1986 was established to fulfill the obligations entailed under the General Assembly’s resolution[i] to adopt consumer protection regulations across signatory countries. Certain amendments to the Act were being deliberated in the parliament since 2014, and it was only in 2020 that the amendment bill came into force.[ii] The Act entails eight chapters covering the provisions related to consumer rights, consumer protection councils, central consumer protection authority, consumer dispute redressal commission, mediation, product liability, offenses and penalties, and powers of Central Government and State Government to make rules and powers of the Central Authority and National Commission to make regulations. The new Act decreases the threshold for sellers and has emphasized caveat venditor. However, various conundrums arise as to the applicability of the provisions on healthcare and the legal profession. Even though the Act does not negate the relevance of the judicial enunciations in Indian Medical Association v V.P. Shantha, the article analyses the repercussions of the amendments and the possible benefits which can be accrued from the same.

New Changes in the Act

One of the much-needed benefits which a complainant seeks is expeditious redressal of complaints. Section 13 (3A) of the Act provides for disposal of cases within 90 days where no analysis or lab testing of the products is required. Where testing of products is needed, the disposal of the case can be done in 150 days. In reality, cases run for many years, and this clause is often breached. According to the Consumer Protection Act amendment in 2002, adjournments should be allowed in exceptional circumstances, and if given, the court should record the reasons for it in writing and justify it.[iii] The table presented in Kapoor’s research entails a lack of presiding officers and disposal of cases in the previous years. By expanding each commission’s jurisdiction, it is apprehended that a significant loosening will be witnessed in the redressal system. The Act increases the pecuniary jurisdiction of District commissions from 20 lakhs to Rs. 1 crore, State Commission’s jurisdiction from Rs. 1 Crore to 10 Crores, and the National Commission’s jurisdiction above Rs. 10 Crore, according to Sections 34, 47, and 58 of the Act. The insertion of these provisions clarifies the ambiguity created by the case of Ambrish Kumar Shukla v. Ferrous Infrastructure. The judgment stated that the jurisdiction must be determined based on the aggregate value of goods and services and used an illustration to buttress the same. The court stated that if an apartment costing Rs. 1 crore has defects worth Rs. 5 Lakhs only, then the value allocated will be Rs. 1 Crore and not Rs. 5 lakh for labeling the jurisdiction. However, this judgment allowed complainants to skip stages of various forums which resided in conflict with Section 14 of the CPA. The Section envisages that the Central Authority has powers to monitor procedures for transaction of its business and allocate such business to the Chief Commissioner and other such Commissioners. Further, the Chief Commissioner has the powers to delegate work related to the administration of the Central Authority and is responsible for matters of general superintendence.  Therefore, the computation of goods’ value has to be based on defects only, not their aggregate value.[iv]

Further, the case would have proved to be a better precedent if a reference was made to Section 8 of the Suits Valuation Act, according to which the value of the suit is determined according to the court fees. Section 7 of the Court Fees Act and Section 34 of the CPC would have aided the bench in setting out the interest amount. However, the new law is based on the consideration paid and not the aggregate value of goods, clearing the confusion surrounding pecuniary jurisdictions.

Protection from Puffery

The amendments introduced in the Act of 2019 also include a widened definition of a consumer, e-filing of complaints, establishment of central consumer protection authority, safeguards upholding privacy, alternate dispute redressal mechanisms, and penalties for misleading advertisements. Recently, the manufacturers of Dhathri Hair Oil and actor Anoop Menon were penalized for advertising that the hair oil guarantees hair growth within six weeks of usage of this oil.[v] A comparison can be drawn with Carbolic Smoke Ball Company’s case. It was held that such a statement would not amount to a puff, but a valid offer, which, if accepted by any individual, would bind the offeror. In cases such as these, the Act has envisaged a provision for class action suits as well, within Section 18 and 19 of the Act.

Apart from tricking consumers in the garb of puffs, the Act also ensures protection against differential or discriminatory pricing done by e-commerce websites. To bolster the Act, Foreign Exchange Management (Non-debt Instruments) Rules, 2019 (NDI Rules), also prohibit such differential pricing under S. No. 15.2.3 of Schedule 1 of the NDI Rules. The Enforcement Directorate registered the case of Telecom Watchdog v Union of India against Amazon and Flipkart due to the same, and such differential pricing could also be adjudicated under Section 3 of the Competition Act, 2002. Rule 4(11) of the e-commerce Rules should be read alongside Section 2 (41) of the Consumer Protection Act as differential pricing and discriminatory behavior is a restricted trade practice under the Act. The Act has made the usage of a customer’s electronic footprint to charge different costs[vi] an offense under the Act. However, profiling to monitor behavioral patterns for customized advertising and product display has not been interfered with. Such profiling techniques are used by tech giants such as Instagram and Facebook to compile metadata and prepare efficient algorithms for mapping user experience and commodifying the time spent by them using the application.[vii]

Increased Threshold for Practitioners

The CPA may have avoided the issue of profiling but has overall intended to be overtly and covertly consumer-friendly. Such a statute has also increased the threshold of the standard of care which needs to be maintained by surgeons and doctors.  The informed consent form is recommended to be filled by the surgeon in front of the patient and his relatives while explaining the surgery’s risks and benefits, the anesthesia to be given, and the possible complications and alternatives. Earlier, a common consent format form for all types of surgery would be sufficient. But now, a specific consent form giving consent for specific and various medical procedures is suggested to avoid the threshold of consumer complaints.[viii] Professional indemnity insurance for doctors is also advisable as it is liability insurance for doctors that provides cover against professional risks such as negligent misdiagnosis, incorrect medicine dosage, surgery-related procedures, or wrong course of treatment suggested. It provides coverage if a patient or any third-party claims injury, harm, death, or financial loss due to the insured medical practitioner’s service, consultation, or advice and can also protect doctors from any libel or slander.[ix] However, the inclusion of lawyers under the ambit of ‘services’ entailed within the Consumer Protection Act was met with dissent from the Bar Council of India and was affirmed by the Minister of Consumer Affairs.

Redressal in Multiple Tribunals

The Consumer Protection act has also been instrumental in buttressing other tenets specified under statutes like the Real Estate (Regulation and Development) Act, 2016. In M/S Imperial Structures Ltd vs Anil Patni and another, the Supreme Court stated that RERA is not against introducing cases in the National Consumer Disputes Redressal Commission or the Consumer Forum. Real estate buyers can file a consumer complaint under RERA and Consumer Protection Act. However, there are a few unaddressed areas in the statute, such as the inclusion or exclusion of the education sector.[x] Further, in cases of insurance premiums that perform the role of consideration, and medical negligence, often do not cross the mark of Rs. 1 Crore. This could result in such cases falling out of the State Commissions and National Commissions’ ambit, overburdening the commissions at the district level. Hence, other issues such as the lackadaisical disposal of complaints should be rectified. In the case of  New India Assurance Co. Ltd v Hilli Multipurpose Cold Storage Pvt Ltd, the Supreme Court upheld that the extension envisaged under Section 13 (2) (a) of the Act could not be elongated more than 15 days as the provision is mandatory and binding.

Conclusion

Such provisions may help strengthen India’s protection framework, however, would result in increasing the standard of care, investment, and cost of sellers for the upkeep of their goods and services. An increase in workforce and providing suitable infrastructure would also help strengthen the justice delivery system. The article provided insight into the nuances of the Consumer Protection Act, 2019, its effect on the professional sphere, further concerns to be litigated, and the benefits accrued by this legislation. Certain loopholes in the system could result in overburdening or unapproachable nature of the system, such as cases related to unfair contracts being filed only in State or National Commissions, imposes a hindrance on redressal in District Commissions as they are more approachable, comparatively. However, this may help lessen the burden on District Commissions.

Endnotes:

[i] General Assembly Resolution 39/ 85.

[ii] Vipan Kumar and Adya Sharma, Strengthening Consumer Rights: The Advent of Consumer Protection Act, 2019, 156 SEBI and Corporate Laws 7 (2019).

[iii] Sheetal Kapoor, Effectiveness of Consumer Forums in India, 6 PRAGATI 69-79 (2019).

[iv] Woods Birch Hazel Residents Association v/s The Managing Director, Bengal United Credit, Belani Housing Company Limited, C.O. No. 1411 of 2018.

[v] Francis Vedakkan v Anoop Menon & Ors, C.C. 345/12.

[vi] Curtis R Taylor, Consumer Privacy and the Market for Customer Information, 35 RAND J. Eco. 631-650 (2004).

[vii] Yvonne McDermott, Conceptualising the right to data protection in an era of Big Data, 4 Big Data & Society 3 (2017).

[viii]Wearne Anderson, Informed consent for elective surgery–what is best practice? 100 J. R. Soc. Med. 97–100 (2007).

[ix] Kaushik Bhattacharya, Consumer Protection Act (CPA) 2019 and the Surgeons, Indian J. Surg. 1-2 (2020).

[x] Dr Aneesh V. Pillai, Promises and Nuances of Consumer Protection Act, 2019: A Birds Eye View, SSRN 25-30 (2019).

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