Drawbacks of Consumer protection law
Author : Shiva Vishnoi
One of the world’s most outstanding and simple enactment of our parliament is Consumer Protection Act, 1986. Such a simple law is not gifted to many countries. Before the enactment of this act, there were certain enactments which protected the consumers only in an indirect way. Some of which are Prevention of Food Adulteration Act, Magic Remedies Act, Weights and Measures Act, Essential Commodities Act. But under these laws, the guilty ones are punished and no direct relief is available to the consumers. Then comes the Consumer Protection Act, 1986 which also provides relief by the way of compensation to the consumer of goods and services. The Act was brought into force from September 1, 1987, and was amended in 1993, enlarging its scope. The Act meets most of the demands of the consumers but still, there are various shortcomings and limitations in the implementation of the Act.
- The position today is that only those services come within this Act for which specific payment is made, such as electricity, telephones, banking, etc. Thus the doctors, as well as hospitals including those where treatment is given free such as government hospitals, do not come within the ambit of the Act. Also, the mandatory civil services, such as sanitation, water supply, etc. provided by the State or local authorities are not covered by the Act
- The Act incorporates only two clauses regarding the supply of hazardous goods, but it does not impose any strict liability on those who supply such goods. Section 2 (c) clause 5 says that the goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner, and effect of use of such goods. Section 6 which talks about the objectives of the central council, in subsection (a) says that the central council would protect the consumer against the marketing of goods and services which are hazardous to life and property. Also, the act does not provide any definition of safety requirements and the permitted hazardous levels.
- A consumer can seek redressal under the Act only if he has suffered a loss or a damage as a result of the unfair trade practice or deficiency in service or the unfair trade practices resorted to by a trader. However, the per se rule is not invoked. The per se rule ensures that any act or practice which prima facie appears to be unfair shall be regarded as unfair and against consumer interest as such, pending its justifications by the opposite party.
- The Act does not empower the Consumer Redressal Fora to issue either interim injunction or “case and desist orders”. Interim Injunction refers to temporary restraint. A temporary injunction is an order by which a party to an action is required to do, or refrain from doing, a particular thing until the suit is disposed of or until further orders of the court. A temporary injunction is interim in nature, granted on an interlocutory application of the plaintiff. Also, the Act does not empower the Consumer Redressal Forums to take up cases suo-moto.
- The Act does not permit a consumer to lodge a complaint with the Consumer fora if an alternative remedy is available under some other law.
- The Act does not impose liability on the chief executive, manager or director where an offence is shown to have been committed by an organisation. Also, the Act specifies a time frame within which the dispute is to be disposed of. The period specified is 90 days, but the actual time taken is much longer.
- The Act concedes six rights of consumers viz. right to choose; the right to safety; the right to be informed; the right to be heard; the right to redress; and right to consumer education. But these rights have not been made justiciable. The Act completely ignores the right of consumers to a healthy environment. It acknowledges only six rights under Section 6 of the consumers as are recognised by the international organisation of consumer unions.
- A major problem arising practically everywhere is that of execution of the orders passed by the Consumer Courts. In a large number of cases, there are defaults in compliance with the orders. There are cases where consumer courts have resorted to issuing of warrants to the defaulting parties. Cases have been taken to High Courts through writ petitions challenging the validity of issue of warrants.
Suggestions For Amendments In The Act And Improvements In Its Enforcement And Implementation
- Section 2(1)(d) and 2(1)(0) of the Act should be suitably amended to modify the definition of the terms consumer and ‘services’ to make it clear that consideration shall not be a condition precedent in case of availing medical and municipal services provided by the government. A victim of medical negligence in a government hospital should be entitled to compensation by enlarging the definition of consumer and bringing free services provided to the public by the government.
- The Consumer redressal Fora should be vested with powers to issue interim injunctions restraining an undertaking or person from carrying on any unfair trade practice as defined in Act.
- The Consumer Redressal Fora should be empowered to take up the cases suo moto.
- In case the unfair trade practice about which a complaint has been made and about which the consumer Redressal Forum has given relief to the complainant, then if Forum is of the opinion that the alleged unfair trade practice is against public interest, it should be empowered to pass an order that the practice shall be discontinued and shall not be repeated. This is commonly called ‘cease and desist’ ordered.
- It is absolutely essential to ensure the quality and competence of non-judicial members who are selected to work on the Benches of Consumer redressal agencies.
- The consumer redressal agencies should be equipped with the personnel for execution of their orders, and in chis way the necessity of depending on Civil or Criminal Courts would be obviated.
- There is a need to prescribe the essential infrastructure to the District Forums and State Commissions so that they are not hamstrung functioning effectively.
- The presence of lawyers should be permitted only where the complainant engages a lawyer who will justify the engagement of the lawyer by the respondent. Otherwise. a lawyer should be allowed only where the court specifically permits or considers it necessary. Further, it should be provided that in no case more than two adjournments will be allowed. Furthermore, a procedure must be established which makes it incumbent on the court to immediately give a copy of the order to the parties so that no excuse is given for the delay in submission of appeals.
- The Act should be amended to empower Consumer Courts to publish the names of manufacturers, traders and dealers whose goods are found to be hazardous to public safety. This empowerment would work as a deterrent to the erring business community.
- The Act should be amended as to streamline the procedure that would facilitate expeditious disposal of consumer cases.