Open Access Research Article
Deficiency In Service In Various Professions (By:Prasahant Vilas Budgude)
Published Paper
Article Details
Deficiency In Service In Various
Professions
Authored By:Prasahant Vilas Budgude
Modern Law College LLM
· Abstract –
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.
·
What Is
“Deficiency Of Services –
1.
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.
2.
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.
3.
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.
·
Keywords –
Deficiency,
Services, unfair trade, Consumer.
·
What Is
Service-
Service is an
intangible benefit availed by the consumer from the service provider. On a
daily basis, we all humans hire different services. Term service is defined
under Section 2(42) of the Consumer Protection Act, 2019, which include
facilities related to banking, financing, insurance, telecom, processing,
transport, etc. Service doesn’t include any free service, it should be in paid
form.
Illustrations:
1.
Legal consultation is a service where a lawyer is a service provider.
2.
A medical check-up is a service where a doctor is a service provider.
3.
Teaching is a service where the teacher is a service provider.
4.
Internet facility is a service.
·
What Is The
Deficiency Of Services Under The Consumer Protection Act, 2019?
In today’s era, services hired or availed of by the
consumers have assumed the most important place for the people globally. The
Act applies to all goods and services as expressly provided in any service
sector where there is a buyer-seller relationship, such as the hospitality,
entertainment, maintenance, railways, banks, electricity, construction, legal
aid, telex, courier, insurance, education, transportation, aviation,
hospitality etc. Deficiency of service can have minor to grave consequences,
ranging from negligence, inconvenience or harassment to mental or physical
injury to death, thereby leading to legal consequences. The services for
consideration offered whether by a private person, firms, companies or by the
government or the corporate bodies, act as the factor for growth and
development of the country and any deficiency in these services would lead to
action under the Act. The sole purpose of the Consumer Protection Act, 2019, is
to protect and safeguard the interests of consumers. It not only covers within
its
ambit physical platforms for a buyer-seller
relationship but also recognizes services provided by e-commerce platforms.
·
Unfair Trade Practice –
Unfair trade practices refer to the use of various
deceptive, fraudulent, or unethical methods to obtain business and promote its
sale of goods and services. The manufacturer, seller and distributor use
illegal and illicit means which includes, false advertising, misrepresentation
or false representation or misleading of a good or service, deceptive pricing,
false free prize or gift offers and noncompliance with manufacturing standards.
An unfair trade practise is sometimes referred to as “deceptive trade
practices”.
According to the Consumer Protection Act, 2019, E-Commerce Rules on unfair trade
practice are laid down under the Consumer Protection E-Commerce Rules. These
rules are applicable to all marketplaces, inventories, e-commerce portals and
other entities including foreign entities which are situated outside India but
supply goods and services to Indian customers. The professional and
non-professional activities are exempted from the applicability of these Rules.
As per these rules, e-commerce entities are
mandatorily required to dispense information such as payment options, warranty,
refund policy, exchange rules, tracking information, shipment details etc.
Herein, if the goods or products sold are not up to the mark or quality as portrayed,
then sellers are liable to take them back or exchange them accordingly. If any
issue arises it is mandatory 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 month from the date of receipt.
·
Deficiency In Service In Various Professions-
1.
Deficiency in Insurance Services –
Deficiency in Insurance Services under Consumer
Protection Act 1986 - A Critical View & Challenges Abhay Butle Assistant
Professor S.P. College of Law Chandrapur Maharashtra (India) The State was
interested in diverting insurance funds for developmental purpose or at least
to stop insurance companies from investing the funds in other business
enterprises, which might affect prospect of the insured people and property.
However, effective the law might be, the control over the funds used and their
investment was difficult.
Despite prescribing the goals, objectives and
directives, it was not possible for the government to supervise the investment
and control the funds of insurance companies. The advantages of insurance are
being increasingly realized by people all over the world. For instance
everybody is aware that life insurance not only inculcates the habit of saving
but also provides protection and security to the insured. With the phenomenal
growth of trade commerce and industry the modern day entrepreneur also believes
that it is in his own interest to have and insurance cover .The business of
insurance has undoubtedly developed at a fast pace over the year. It needs
however to be seen whether side by side the insurance companies have also
achieved consumer satisfaction .It is perhaps of the term service in the
Consumer Protection Act 1986 the intention undoubtedly was to provide cheap and
expeditious redresses to the aggrieved consumers presumably resenting judicial
scrutiny of their actions. The public sector insurance corporations as well as
the private insurance companies also challenged the jurisdiction of consumer
redressal agencies set up under the Consumer Protection Act 1986 to entertain
disputes relating to Insurance service. The act however restricts the ambit and
scope of the power of the redressal agencies to award compensation to the
aggrieved policy holder. It is only when there is deficiency in the service
rendered to him and he has suffered any loss or injury due to the negligence of
the insurers that relief by way of compensation can be granted to him. In other
words the consumer is entitled to relief under the Act if and only if he
establishes that he hired the service complained of for consideration and that
the service provided to his has a deficiency.
2. Deficiency In Banking And
Finance Services -
A person who has applied for shares is a consumer,
contrary to the general misconception that an applicant for shares prior to
their allotment cannot be a consumer. The reason for this misconception is the
judgement of the Supreme Court in the case of Morgan Stanley where the Supreme
Court interpreted the provisions of the Consumer Protection Act prior to its
amendment in June 1993, and held that an applicant cannot enjoy the status of a
consumer prior to allotment. Fortunately, the CP Act, was amended in 1993 so
that prospective consumers, who have agreed to purchase any goods, would also
have a right to file a complaint.
Applications for shares are mostly made by tendering
the application to specified banks appointed by a company for that purpose.
These banks are required to process the applications by presenting the
applicants cheque for clearance and then crediting the proceeds to the companys
account. Subsequently,
the company allots the shares or sends the refund
order in accordance with the scheme of allotment.
Many times, during this processing, the bank
misplaces or loses some application forms. In other cases, the bank appoints
some computer agency for processing the data. Due to a mistake in feeding the
details, some cheques are returned for re-presentation after correcting the
relevant mistakes. Instead for making the necessary correction and
re-presenting the cheque, the bank sleeps over the matter, and by the time the
applicant comes to know of this fact, the issue has already closed.
In such cases, the applicants money has not been
received by the company floating the shares, and hence he would not be entitled
to allotment of shares by the company. Here, action would lie against the bank
and not against the company. Can the bank take a stand that the applicant has
not paid any service charges to the bank for accepting and processing the
application and hence the services rendered being free are outside the ambit of
the Consumer Protection Act No, the bank cannot wriggle out by raising such an
excuse.
The
bank is doing this work on a commercial basis and is being paid by the company
to accept applications on its behalf. Hence, even though the applicant may not
be paying service charges to the bank, the service is not free. The applicant
thus becomes a beneficiary of the services hired by the company, and hence is
entitled to file a complaint against the bank for its negligence and deficiency
in service. A complaint against the bank can be filed in the District Forum
having jurisdiction over the District in which the application was tendered, or
where the bank concerned has its branch office. This makes it convenient for
the consumer.
Many
people are not aware of this, and waste time and money by filing a complaint in
the wrong forum. The law on this subject has been settled by the National
Commission in the case of Rajaram Corn Producers Punjab Ltd v/s Suryakant Nitin
Kumar Gupta (HUF) [ I-1996 (1) CPR 35 ] as well as in the case of Haryana Urban
Development Authority v/s Vipan Kumar Kohli [ VII-1995 (2) CPR 499 ]. This
interpretation about the territorial jurisdiction unfortunately causes
considerable hardship because many a time the amount of the investment would
not be worth the cost of litigating in a distant forum. In such cases, the small
and medium investors are the worst hit.
You
must be aware of your rights and fight for them. At the same time you should
also be aware of the law so that you do not waste time and money filing a
complaint in a forum which does not have the necessary territorial
jurisdiction.
·
Indian Judiciary On “Deficiency Of Services” Under Consumer Protection
Laws :
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.
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 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.
·
Conclusion –
As the world is on the track of development there is a
rampant rise in disputes too. Law must keep pace with the needs and demands of
society. Deficiency of service can have small or grave consequences, ranging
from negligence, inconvenience, injury or death, thereby leading to legal consequences.
Subsequently, the manufacturer, seller, distributor and providers can also be
liable for deficiency of services. The Consumer Protection Act, 2019
grants a remedy to the consumers against any deficient service or goods
provided by the seller or service provider by providing relief in terms of
compensation as per the Act.
Article Information
Deficiency In Service In Various Professions (By:Prasahant Vilas Budgude)
Authors: Prasahant Vilas Budgude
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/19
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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