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Deficiency of Services under Consumer Protection Act, 2019

August 18, 2020

By Priyanka Batra and Nishtha Das

When a service is found deficient by a consumer, they can lodge a complaint under the Consumer Protection Act, 2019. Thus, the prime requirement is that the matter must fall within the “definition of service”, and it must entail a deficiency as per the requirements provided under the Consumer Protection Act, 2019.

Also read Consumer Protection Act, 2019 comes into force

What is “Deficiency of Service”?

  • According to the definition under Section. 2(11) of Consumer Protection Act 2019 (“the Act”), any sort of imperfection, or defect in the feature, quality, amount, worth, authenticity, its capacity or potential, and standard which is obligatory to be maintained and regulated as per the laws and statutes in function or any agreement/contract claimed by the seller, with respect to the products and goods, is known as deficiency.
  • Willful and deliberate concealment of important information, omission or negligence of acts by seller which may lead to injury or loss to the consumer(s), also comes under the ambit of deficiency of service.
  • Any act(s), which a prudent seller is supposed to do or is supposed to omit, but deliberately does the contrast, such actions amount to ‘deficiency of service’.

Deficiency of service can be witnessed in any service sector where there is buyer-seller relationship, such as, railways, banks, legal aid, electricity, construction, education, transportation, aviation, hospitality, restaurants, entertainment etc. Deficiency of service can have minor to grave consequences, ranging from inconvenience or harassment to mental or physical injury to death, thereby leading to legal consequences.

The Consumer Protection Act (both old and new) is a legislation enacted in India with the sole purpose of protecting and safeguarding the interests of consumers. The Consumer Protection Act, 2019, which came into effect on July, 20 2020, not only covers within its ambit physical platforms for buyer-seller relationship but also recognizes services provided by E-commerce platforms.

Indian Judiciary on “Deficiency of Services” under Consumer Protection Laws

Indian Medical Association v. V.P. Shanth[3]– In this case, the Hon’ble Supreme Court through this case included medical profession and medical negligence, within the scope of the Consumer Protection Act. Consequently, empowering the aggrieved (due to medical negligence) to sue for damages for deficiency in services by a medical professional or medical institution, in a Civil Court.

Gurshinder Singh vs. Shriram General Insurance Co. Ltd and Ors. 2020[4]In this case, the Hon’ble Supreme Court while reiterating the verdict passed in the case of Om Prakash v. Reliance General Insurance and Anr. Civil Appeal No. 15611/2017[5] held that insurance claims should not be declined on technical grounds, if the reason behind it is satisfactorily explained and proved. 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.

Unfair Trade Practices

A trade practice is touted as unfair when in order to promote its services or sale of its goods, supply and distribution of its products, an entity uses illicit and illegal means to mislead the general public into opting for in-genuine and deceptive goods and services. Some examples are: portraying the goods to be of good quality when they are actually of inferior/poor quality, misleading public with fake components and ingredients, misrepresentation of services, claiming used goods and products to be brand new, fake advertising, selling goods not complying with safety and other industry standards while claiming otherwise etc.

According to the newly enacted Consumer Protection Act 2019, E-commerce Rules on unfair trade practices have been laid down under the Consumer Protection (E-commerce) Rules, 2020[8].

Also read Consumer Protection (E-commerce) Rules, 2020 comes into force

  • These rules are applicable to all e-commerce portals, inventories, marketplaces and other entities (including foreign entities, which are situated outside India but supply goods and services to India as well) involved in providing services to customers. Activities which take place on personal level and non- professionally, are exempted from the applicability of these Rules.
  • As per the rules, E-commerce entities are mandatorily required to dispense information such as refund policy, warranty, exchange rules, payment options, tracking information, shipment details etc. If the goods or products sold are not up to the mark/quality as portrayed, then sellers are liable to take them back or exchange them accordingly.
  • Such platforms are mandated to answer any query or complaint filed by a consumer within 48 hours and shall provide proper redressal to such consumer complaint within the period of 1 months, from the date of receipt of Moreover, appointment of grievance officer is compulsory.

CONSUMER COMPLAINT REDRESSAL MECHANISM

In case of any deficiency in services, the consumer can approach Consumer Courts constituted under the Act. After the commencement of new Consumer Protection Act, 2019, consumer complaints can now be registered electronically. The whole adjudicating procedure has been simplified by not just permitting electronic filing but, empowering and authorizing District and State Consumer Forums to address to review applications and also advise mediation (whenever feasible).

Consumer Courts is a 3-tier system of courts (National level, State level and District level) where aggrieved consumers can approach as per the valuation of matter in concern, for redressal and adjudication of disputes. Once the issues of the matter in dispute are recognized, the further step is to understand the pecuniary limit/jurisdiction of the case.

Pecuniary Jurisdiction in Consumer Cases

Forum Value of Claim
District Consumer Disputes Redressal Forum[9]:  Rs. 1 Crore or less

 

State Consumer Disputes Redressal Commission[10] Between Rs. 1 Crore to Rs. 10 Crore.
National Consumer Disputes Redressal Commission[11]

 

More than Rs. 10 Crore

What remedies are available to an aggrieved Consumer?

  1. Grievance Redressal Mechanism of Service provider- One of the first step that an aggrieved Consumer shall consider is to approach the Grievance redressal mechanism or authority of the service provider. For instance, most of the Insurance companies and organizations have their Internal grievance redressal mechanism and an aggrieved consumer can approach this mechanism or authority with his complaints before initiating any legal action against the service provider.
  2. Sending of Legal Notice: Prior to availing of statutory remedies and approaching the Consumer Forum, it is advisable that the aggrieved consumer exhausts any alternative legal remedies available to him/her. One of the actions that can be taken by Consumer before approaching the Consumer Court is to send legal notice to the service provider detailing the particulars of compliant, relief sought for, time period to comply with the conditions and cautioning the service provider of legal recourse in the event of non-compliance of terms and conditions of the notice.
  1. File Consumer complaint before appropriate ForumIf the service provider fails to comply with the terms and conditions mentioned in the legal notice or disagrees to compensate for the loss caused, the complainant has the right to file a legal complaint in the Consumer forum. It is pertinent to state that, sending of legal notice is not mandatory and therefore, a complainant has the right to directly approach respective consumer forum for filing of complaint.

Particulars of Compliant- The complaint must contain all the necessary details of the complainant and service provider such as: name and address, relevant facts of the matter, remedy sought, affidavit (signed and verified), all other relevant documents (bill details, mode of payment, guarantee cards etc).

Limitation period to file Consumer Complaint- As per Section 35 of the Act, a consumer complaint must be filed to respective District Forum within a span of two years from the date on which the cause of action or deficiency in service or defect in goods arises. Nevertheless, the law permits the Consumer or aggrieved to file a complaint even after the statutory period of two years if the District Forum is satisfied that the complainant has genuine and valid reasons for not filing the complaint within the specified time period.

Admissibility of Complaint by forum- Section 36 of the Act prescribes that, after the filing of consumer complaint, District Forum shall revert on admissibility of the complaint within the span of 21 days from the date of filing. Failing which shall be deemed to be admitted and approved.

  1. MediationAccording to Section 37 of the Act, if the respective Forum considers mediation as a viable option for settlement, it may, with the consent of parties, advise them to opt for mediation. In that case, contesting parties are required to provide written consent within five days from such proposal, to the Forum. If mediation fails, case shall fall back to the Forum. It is pertinent to mention that, according to Section 81(1), no appeal can be filed and entertained by respective forum against the order passed by Mediation.
  2. Review applicationIf the complainant is not satisfied with the verdict passed by District consumer forum, then he/she can file a review application in the same forum within 30 days from the date of pronouncement of order.[12] In case the complainant is not satisfied by the order on review application, the aggrieved can appeal to the next higher judicial authority i.e., State Commission within 45 days from the date of passage of order.[13]
  3. Filing appeal with National CommissionSimilarly, if the complainant is not satisfied with the order passed by State Commission, aggrieved can file review application in the same forum within a period of 30 days from the date of passage of order.[14] Otherwise, if aggrieved by the order passed by State Forum, he can has the right to appeal to National Forum within 30 days from the date of order given by previous forum.[15]

[2] http://egazette.nic.in/WriteReadData/2019/210422.pdf ; https://consumeraffairs.nic.in/sites/default/files/E%20commerce%20rules.pdf

[3] 1996 AIR 550

[4] MANU/SC/0083/2020

[5] MANU/SC/1259/2017

[8] https://consumeraffairs.nic.in/sites/default/files/E%20commerce%20rules.pdf

[9] Section 34 of Consumer Protection Act, 2019

[10] Section 47 of Consumer Protection Act, 2019

[11] Section 58 of Consumer Protection Act, 2019

[12] Section 40 of Consumer Protection Act, 2019

[13] Section 41 of Consumer Protection Act, 2019

[14] Section 50 of Consumer Protection Act, 2019

[15] Section 51 of Consumer Protection Act, 2019

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