The Author, Akanksha Bhattarai is a 5th Year, BBA.LLB student at Symbiosis Law School, Pune.

Introduction

Under the Consumer Protection Act, 2019, a complaint can be filed when a consumer detects deficient in a service. However, the threshold of deficiency must fall under the ambit of the definition of deficiency given under the Consumer Protection At, 2019. The consumer Protection Act, 2019 came into effect on July 20, 2020. The Consumer Protection Act 2019 not only recognizes physical relationship of buyer-seller but also has acknowledged services pertaining to e-commerce platforms. The aim of both new and old Consumer Protection Act is to protect and safeguard the interest of consumers.

Definition of Deficiency of Service

Section 2 (11) of Consumer Protection Act, 2019 defines Deficiency of Service as “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 and includes (a) any act of negligence or omission or commission by such person to the consumer and (b) deliberate withholding of relevant information by such person to the consumer.”

The term ‘defect’ is defined under Section 2 (10) of Consumer Protection Act, 2019 as “any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under and law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or products and the expression ‘defective’ shall be construed accordingly.”

In any buyer-seller relationship, deficiency of service prevails. Such as legal aid, banks, railways, construction, transportation, education, electricity, entertainment, restaurant, hospitality, etc. The consequences of deficiency of service can range from inconvenience or harassment to mental or physical injury to death, thereby leading to legal consequences.

Important Case Laws

Indian Medical Association v V.P. Shanth

This case is a result of medical negligence from medical profession. This landmark decision recognized patient’s rights through giving them the consumer status where complaints could be lodged in a case of deficiency in the field of medical services under the Consumer Protection Act, 1986. The liability of doctor and hospital management arises when a patient is admitted. The standard duty of care must be maintained by the hospital. When a patient is admitted, he/she is also considered as a consumer. 

 The Supreme Court emphasized on the interest and safeguards of patients which is given the upmost importance.

In the case of Om Prakash v Reliance Genral Insurance, where the insurance company declines the insurance of the complainant on the basis of delaying in intimating the insurance company. However, in the case of Gurshinder Singh v Shriam General Insurance Co. Ltd and Ors, it was ruled that with a reasonable and satisfactory explanation, insurance claims were not to be declined due to technical grounds. It was further opined by the Court that if the insurance claim is declined by the Insurer because of untimely intimation of occurrence of theft/robbery, it would be considered as a technical ground of rejection and the same would be unjust and not fair, if the respective claim in question has already been verified. Hence, it was held by the Court that, mere delay in intimating the insurance company about the theft must not act as a valid ground to decline or repudiate the insurance claim, which has already been proved to be genuine.

Consumer Complaint Mechanism

The consumers have the liberty to go the Consumer Courts in case of deficiency in services as laid downed under the Act. The new Consumer Protection Act, 2019 has opened the option of filing consumer complaint electronically. The procedure to register consumer complaint is made simple by allowing the State and District Consumer Forums for reviewing the applications and advising appropriate method such as mediation.

The Consumer Court in India is subdivided into three levels of courts, the National Level, the State Level and the District Level, depending on the gravity of the matter the consumer may approach as per the valuation of matter for redressal and adjudication of disputes. The next step after recognizing the matter of dispute is to understand the pecuniary jurisdiction of the concerned case as follows:

Jurisdiction for Filing Complaint

Forum

Value of Claim

District Consumer Disputes Redressal Forum

Rs. 1 Crore or less

State Consumer Disputes Redressal Commission

Between 1 Crore to Rs. 10 Crore

National Consumer Disputes Redressal Commission

More than Rs. 10 Crore

 

All these forum has the same power which is given to the civil court such as cross examination in the laboratory, survey, testing all the powers have been given and all the forum has given appeal provision. 

Remedies

Step 1: Before initiating a legal action against the service provider, the aggrieved consumer may consider to go to the grievance redressal mechanism of the service provider. Most companies have internal grievance redressal mechanism where the consumer may file their complaints.

Step 2: The consumer can send a legal notice to the service provider before taking the matter to the consumer court specifying the details of the complaints, relief to be taken and time stipulated to resolve the issue and conditions.

Step 3: If the service provides fails to resolve the issue and disagrees to compensate the consumer for the loss occurred to them then the consumer has full authority to lodge a legal complaint against the service provider in the consumer forum. However, if the consumer wants to directly approach the consumer forum, he/she can because there is no obligation to send a legal notice beforehand.

A complaint needs to be included with essential details of both consumer as well as the service provider such as name, address, facts, remedy, affidavit and other supporting documents.

Time period to file Consumer Complaint:

Section 35 of Consumer Protection Act, 2019 states that a complaint must be lodged to the respective District Forum within two years of the time of the cause of deficiency in service or any defect in goods. If the consumer has proper and valid reasons and the District Forum agrees, then the time spam of filing the complaint can cross more than two years period of time.

Further, Section 36 of the Act talks about the admissibility of complaint by forum that a consumer must file a complaint within the time period of 21 days from the date of filing.

Mediation: Section 37 of the Act talks about talks about the mediation as an option of settlement with consent of parties. Within the period of five days, both the parties are to provide with a written consent. However, if both parties fail to see eye to eye, then the case returns back to the District Consumer Forum. It is essential to note that Section 81 (1) states that no appeal can be filed and entertained by respective forum against the order passed by Mediation.

Review Application- Section 40 of Consumer Protection Act, 2019 states that if the consumer is not satisfied with the order given by the District Consumer Forum, then a review application can be filed by the consumer within the time period of 30 days from the pronouncement of the order. Further, Section 41 of Consumer Protection Act, 2019 states that if the consumer is still not stratified with the order given by the review application then they can take up to State Commission within 45 days from the date of pronouncement of order.

 

National Commission- According to Section 50 of Consumer Protection Act, 2019, the complainant can file an application for review in the Forum within 30 days if the complainant does not find the order passed by the State Commission to be satisfactory. Further, Section 51 of Consumer Protection Act, 2019 states that if the order passed by the State Forum is not satisfactory then the complainant has rights to appeal to National Forum within the time period of 30 days from the date of the order passed.

It is important to note that a consumer cannot directly file a complaint through Supreme Court. It has to go from District Commission, State Commission then the National Commission. If the consumer is not satisfied with the decision rendered by the National Commission then it will go before the Supreme Court.

Consumer under Section 2 (7) means any person who buys any goods and hires any services which includes both online as well as offline transactions via electronic means, teleshopping, direct selling or multi-level marketing.

Consumer Rights under Section 2 (9) includes-

  1. The right of being protected against marketing of goods, products or services which are danger to life and property
  2. The right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services
  3. The right to be assured, whenever possible access, to a variety of goods, products or services at competitive prices
  4. The right to be heard and to be assured that consumer’s interests will receive due consideration at appropriate fora
  5. The right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumers
  6. The right to consumer awareness

Unfair Trade Practices

Indulging in illegal or illicit means to promote a product or service by misleading the public into making the product appear of a good quality when it is of a low quality is unfair trade practices. For instance, including a fake ingredient, fake advertisement, not complying with the health standard of the consumers.

E-commerce

E-commerce is regulated by the Consumer Protection Act. The Consumer Protection (E-commerce) Rules, 2020 comprises of e-commerce rules on unfair trade practices. If there is any deficiency in services of online transactions, online shopping or online e-commerce transaction, then a complaint can’t be filed before the forum. E-commerce are required to dispense information such as refund policy, warranty, exchange rules, payment options, tracking information, shipments details etc. The complaint filed by the consumers are to be answered within 48 hours.

Conclusion

Deficiency in services plays a vital role to a consumer as well as the service provider. The Consumer Protection Act, 2019 has successfully managed to incorporate as aspect of deficiency that may be found in a product or service, hence giving the consumer the power to take any unfair practice to the court of law.

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Akanksha Bhattarai