Open Access Research Article
ANALYSIS ON DEFICIENCY OF SERVICE UNDER CONSUMER PROTECTION ACT 2019 BY: NARAYAN DNYANOBA SASTE
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Article Details
ANALYSIS ON DEFICIENCY OF SERVICE
UNDER CONSUMER PROTECTION ACT 2019
AUTHORED:
NARAYAN DNYANOBA SASTE
ROLL No.:01
CLASS:
LLM-II
ACADEMIC
YEAR: 2023-24
1.
INTRODUCTION:
There is discrepancy with the quality or amount of the product
or deficiency in the Services by the Service provider which amounts to
disputes. These disputes are between Consumer and product seller or
Service provider.
There is cutthroat competition in the market and in
order to survive the traders indulge in various kinds of malpractices like
overcharging, deficient supply of goods and services, unfair trade practices,
defective goods and so on. These factors have given rise to put consumer
protection under active consideration and it has to step to ensure the
protection and welfare of people. Consumer
Protection Act, 2019 (hereafter referred to as ‘the Act’) enables
the redressal of disputes arising out of the transactions between the consumers
and goods or services provider. Under this Act, This Act enable to curb
negligent activities by providing justice to the consumers who have suffered
loss or injury.
2.
Deficiency
in services:
2.1 What is a 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.
Various companies are providing Internet service these companies
are called service provider.
2.
In many industries Housekeeping services are being provided by
the House keeping companies These companies called as service provider.
3.
Lawyer is providing his service to the client they are called as
Service Provider.
4.
Hospitality Services are being provided by the Hospital in case
of patient.
2.2 What is a deficiency?
According to Section 2(11) of the Consumer Protection Act 2019
(“the Act”), deficiency is any sort of fault, imperfection, shortcoming or
defect in the feature, quality, amount, nature, worth, authenticity, capacity
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. Including any act of negligence, omission or
commission by the seller which causes loss to the consumer, which a prudent
seller is supposed to do or is supposed to omit, but deliberately does the contrary,
such actions amount to ‘deficiency of service’. These definitions help to
understand the clear meaning of deficiency in services. Whenever there is any
sort of deficiency in services, the customer is exploited which impacts and
causes loss of money. Any kind of negligence or omission or commission can
cause injury to consumers.
2.3 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.
Examples of deficiency of services:
1.
Inappropriate treatment done by a doctor leading to an increase
in patient’s suffering is the deficiency in service.
2.
A customer buys a ticket for an AC bus. But the AC of the bus
does not work, which is a deficiency of service.
3.0 Analysis
of deficiency of services under the Act:
The Act imposes strict liability on the manufacturer,
distributors, suppliers and retailers for causing injurious harm by its
defective products or services. Notwithstanding any contractual obligations and
limitations of the liability, if a product or any of its components fails to
comply with the necessary standards and therefore causing a defect in the
product, shall make the manufacturer of the product directly liable for damages
under the Act or the common law of negligence. Subsequently, the action can be
brought for injury, death or any damages caused to a person or property under
the Act due to a defect of the product. This means that there is no need for
consumers to prove that the manufacturer was negligent for filing the suit
against the manufacturer. The consumer only needs to prove that the defect in
the product, the damage or injury was caused to the consumer by the product or
service only.
4.0 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.
5.0 Consumer complaint redressal mechanism:
The consumer can approach Consumer Courts constituted under the
Act, in case of any deficiency in services. The complaint can be filed
according to the procedure established under the Consumer Protection Act,
2019. A complaint consists of written allegations for claiming liability
against the manufacturer, the seller, the product, or the service provider.
Such complaints can be filed by one consumer or more than one consumer, any
registered voluntary consumer association, heirs, or the legal representatives
of the consumer, the central or state government. In the case of a minor,
his/her parents or guardians can file the complaint on behalf of the
minor.
Nowadays, consumer complaints can be registered electronically.
The whole adjudicating procedure has been simplified by permitting electronic
filing and also empowering and authorizing District and State Consumer Forums
to address to review applications and also advise mediation.
In India, there is a 3-tier system of Consumer Courts, such as
National level, State level and District level. Wherein the aggrieved consumers
can approach as per the valuation of matter in concern, for redressal and
adjudication of disputes. After recognizing the matter in
dispute, the further step is to understand the pecuniary jurisdiction of
the case.
5.1 The pecuniary
jurisdiction of the consumer cases:
·
District Consumer Disputes Redressal Forum: Rs. 1 Crore or
less.
·
State Consumer Disputes Redressal: Between Rs. 1 Crore to
Rs. 10 Crore.
·
National Consumer Disputes Redressal Commission: More than
Rs. 10 Crore.
6.0 Recent
cases of deficiency in services:
6.1.1 Manu Sharma And Another vs Dr. Kulwant Singh
And Another on 16 April, 2021
Opposite parties alleging
medical negligence and deficiency in service on
the part of opposite parties No.1 to 5, resulting into death of their daughter
... opposite parties No.1 to 5 amount to medical negligence and deficiency in service.
Hence, the present complaint. Defence of the Opposite Parties.
State
Consumer Disputes Redressal Commission:
Although, the loss suffered by the
complainants due to deficiency in service and
medical negligence of opposite parties No.2 to 5 cannot be compensated in
terms of money, yet in view of law laid
down by the
Hon'ble Supreme Court in above referred authority, age of the patient, and the
totality of facts and circumstances of the case, we award lump sum compensation
of ?33,00,000/-
(Rupees Thirty Three Lac only) to the complainants, along with interest at the
rate of 7% per annum from the date of filing of the complaint till realization,
due to deficiency in service and medical
negligence and deficiency in service on the part
of opposite parties No.2 to 5 and resultant mental agony, harassment, avoidable
pain, sufferings caused to the complainants and her family members, including
medical expenses and loss of their beloved child. However, the apportionment of
the compensation/liabilities of opposite parties No.2 to 5, as per the extent
of their deficiency in service and medical
negligence, will be detailed in the conclusion and relief part of this
judgment.
6.1.2
M/S. Anamika Real Estate Pvt. Ltd. & 2 ... vs Tanuja S.
Shetty & Anr. on 9 October, 2019
That the Opposite Party
University has indulged in deficiency of service and
unfair trade practice by inducing them and false assurances that the University
... seeking a direction to the Opposite Party to compensate for the deficiency of service and
the unfair trade practice indulged in by the Opposite Party.
National
Consumer Disputes Redressal:
For the unfair trade practice (alone) [and not for 'deficiency in service'],
the builder co. and its Director Nitin Mehta are put to stern advice of caution
through imposition of cost, jointly and severally, of Rs.25,00,000/- (rupees
twenty five lakh), out of which Rs. 15,00,000/- (rupees fifteen lakh) shall be
deposited with the Consumer Legal Aid Account of the State Commission and Rs.
10,00,000/- (rupees ten lakh) shall be paid to the complainants (equally)
within four weeks of pronouncement of the reasoned judgment. The payment to the
complainants, made specifically and only for the 'unfair trade practice' under
the Act 1986, shall be independent and separate of and without prejudice to
seek remedy (refer paras 12, 13 and 14 above) in a civil court and / or to
agitate their case before any competent authority.
7.0 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.
8.0 References:
·
International Journal of Research, A Critical
Analysis of Deficiency in Services under Consumer Protection Act, 1986,
Article Information
ANALYSIS ON DEFICIENCY OF SERVICE UNDER CONSUMER PROTECTION ACT 2019 BY: NARAYAN DNYANOBA SASTE
Authors: NARAYAN DNYANOBA SASTE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/17
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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