So, what is a Consumer Protection Act !! As the name would suggest, it sought to furnish an (advanced) legal framework, to protect us as Consumers, from being cheated, from defective, inferior, duplicated or hazardous, goods and services.
To start with, now a Complaint can be filed electronically; and the hearings, on request, can be conducted through Video Conferencing. Another notable feature that can be elicited is that, by virtue of Section 65, now Notices to the parties, especially to the opposite parties, can be served by electronic means. It follows that Notices can even be served through Email and Whatsapp. These are extraordinary provisions. The Mediation is formally inducted in the adjudicating process, notwithstanding settlement option was otherwise always available to the litigating parties.
Another important issue that has been addressed in the new regime is, aptly defining the pecuniary jurisdiction of these Tribunals. Now it has been specifically stated (u/ss 34, 47 and 58] that these Tribunals shall entertain complaints (in so far as pecuniary jurisdiction is concerned), to be Valued on the basis of amount actually paid for availing such goods or services, and not on the basis of Value of goods and services availed. It may be known that the pecuniary jurisdiction of Consumer Tribunals constituted under 1986 Act, was decided in the year 2016, in the Case of Ambrish Kumar Shukla versus Ferrous Infrastructure Pvt Ltd, that is 20 years after the Act came into force.
In respect of jurisdiction, two important changes have been introduced. One – now Complaints for Valued upto Rupees One Crore can be maintained before District Commission; and Complaints Valuing more than Rupees One Crore, but does not exceed Rupees ten crore, may be filed before State Commission; and Complaints Valuing more than Rupees Ten Crore, have to be preferred before National Commission. Regarding territorial jurisdiction, now a Complaint can be maintained at the place where the Complainant resides or personally works for gain.
Another notable achievement of new regime is that, by virtue of Section 38(3)(c), in case the Complainant fails to appear on the date of hearing, the Tribunals are obligated to decide the complaint on merits. In the old regime, these Tribunals in that event, had the discretion to dismiss the complaint or may decide it on merits.
The powers to grant Interim Reliefs, during the course of proceedings, is aptly retained u/s 38(8) of the new Act. The Summary procedure contemplated under the old Act and other powers of these newly constituted Tribunals (u/s 38), are substantially retained. Also, u/s 100 of the Act, it is retained that the provisions of the new Act are be in addition to and not in derogation of the provisions of any other law.
Further, now the District and State Commissions (u/ss 40 and 50] are invested with the powers of Review of any of the order passed by them. In the old regime, these powers were available only with National Commission.
Regarding enforcement of Orders passed by these Tribunals, u/s 71 of the new Act, now it is provided that Orders passed by these Tribunals shall be enforceable in the same manner as if it were a decree of the Court and the provisions of Order XXI of the CPC, 1908, are duly made applicable.
The timeline for to handout justice within three months / five months is a mechanical repetition from old Act, without there being anything in the new Act, that inspire such assurance in such timeline. However, a little pragmatic approach in the procedure, which is hitherto followed in the old regime, and in all probabilities, would be followed in the new regime, may perhaps help in disposing of Cases in a six months to one year time frame.
The procedure that is followed is – Consumer files the Complaint, alongwith the documents he rely upon. Thereafter, the opposite party files their Reply, alongwith the documents they rely upon. Thereafter, both the parties are call upon to file their Evidences. Now, what is being done is, the Evidence that are filed by both the parties, is the reproduction of entire Complaint / Reply, and documents that have already been annexed by both the parties.
This duplication must be avoided; and Complaint / dispute must be decided on the basis of Pleadings, that is, the Complaint and the Reply version of the Opposite parties, and of course the documentary evidences they have annexed with the Complaint and Reply. This will not only save time in adjudication, but will also save lot of papers, otherwise being wasted, and making the file needlessly bulky.
That, u/s 38(6) of the new Act, it is provided that every complaint shall be heard by the District Commission on the basis of affidavit and documentary evidence placed on record. This mandate is duly complied with, because these Pleadings (Complaint and Reply) are Statements on Oath, and they are supported by Affidavits of both the parties.
Further, apart from making Complaints before Consumer Tribunals, a new jurisdictional avenue is sought to be created whereby the Complaints (u/ss 16 and 17), relating to unfair trade practices and false or misleading advertisements, may be recorded before the District Collector or to the Central Authority, or to any of the Regional office of the Central Authority; and wide powers have been conferred upon these Authorities u/ss 19 to 22 of the Act, to bring these Complaints to its logical end.
A new concept of Product liability [defined u/s 2(34)] is introduced, by which, among other things, damages / compensation may be claimed against the product manufacturer, product seller or product service provider, for the harm or injury caused due to defective / deficient goods or services. The new regime sought to impose strict liability upon the product manufacturer, even if they able to prove that they were not negligent or fraudulent in making the express warranty of the concerned product. This mandate is rather strange and unsustainable in law. It quite may happen that harm may occasion due to negligence of the Consumer himself.
Coming to huge anomaly in the constitution of Benches that will hear Complaints. That, u/ss 36(1), 49(1) and 59(1) of the new Act, it is mandated that every proceeding before these Tribunals shall be conducted by the President and at least one member thereof, sitting together. In view of the Qualification requisites Rules made by Central Govt, for the Appointment of President and the Members, this mandate is in conformation to the dicta of law reiterated in R. Gandhi Case [2010 (11) SCC 67], wherein it is observed and held that where jurisdiction to try certain category of cases are transferred from Courts to Tribunals only to expedite the hearing and disposal or relieve from the rigours of the Evidence Act and procedural laws, in respect of such Tribunals, only members of the Judiciary should be the Presiding Officers/members of such Tribunals.
However, in view of Sections 28, 42 and 54, whereas only one President can be appointed for each of the District, State and National Commission, there can be only one functional Bench in any District and State Commission; and even in National Commission; and if it is so, how other Members of the Tribunals, being duly appointed, would discharge their duties.
Further, Rule 16 of Consumer Protection Rules, 2020, does contemplate hearing of Complaints before National Commission, by Bench comprising of Members, without President, to be constituted by the President. But if a Bench comprising only Members sans the President would hear the Complaints, the constitution of such Bench may be in breach of dicta reiterated in R. Gandhi Case supra. This is because, in view of Rules relating to Qualification qua the Appointment of Members, all the Members of the Tribunals may not be recruited from Judicial background, whereas in R Gandhi Case, it is categorically held that in such Tribunals, only members of the Judiciary should be the Presiding Officers/ Members of such Tribunals. Rule 16 is therefore ultra vires the Sections 36(1), 49(1) and 59(1). To rectify this anomaly, the Qualification for Appointment Rules must be made in consonance to dicta reiterated in R, Gnadhi Case supra.
The National Commission, u/s 70 of the Act, have been invested with the powers of Administrative control over State Commissions, in respect of certain matters, that is (a) monitoring performance of the State Commissions in terms of their disposal by calling for periodical returns regarding the institution, disposal and pendency of cases; (b) investigating into any allegations against the President and members of a State Commission and submitting inquiry report to the State Government concerned along with copy endorsed to the Central Government for necessary action; (c) issuance of instructions regarding adoption of uniform procedure in the hearing of matters, prior service of copies of documents produced by one party to the opposite parties, furnishing of English translation of judgments written in any language, speedy grant of copies of documents.
Likewise, State Commissions are invested with the similar powers of Administrative control over District Commissions in their respective jurisdiction.
Regarding Consumer Complaints and Appeals that are pending under old regime, u/s 107 of the new Act, in essence, it is provided that these pending cases will now be governed by the provisions of the new Act, unless it is alleged by any of the parties therein, that, given the stage of the old proceeding, there are patent inconsistency in the provisions of the old Act and in the new Act, and the applicability of the provisions of new Act may be prejudicial to that party alleging inconsistency. The new Act, at the same time retains the mandate of Section 6 of the General Clauses Act, 1897, which deals with situations where any Act is repealed. It, inter alia, provides that where any Central Act is repealed, such repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act.
Sandeep Jalan
Advocate
https://www.litigationplatform.com/
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