Defect in goods and deficiency of services under the Consumer Protection Act, 1986
INTRODUCTION
The Consumer Protection Act, 1986 was introduced to make it easier and faster for consumers to resolve their grievances. For the first time, the Act defined the term “consumer” and granted him/her express additional rights and special protections. It is worth noting that the Act does not aim to cover any consumer in the classical sense but the broader sense. The Act is comprehensive because it primarily focuses on protecting the interests of consumers by safeguarding them against defective goods, deficient services, unfair trade practices and restrictive trade practices. The government has enacted several laws to ensure that the sellers act in the public’s interest and protect consumers’ rights against unscrupulous activities.
MEANING OF DEFECTIVE GOODS
It is crucial to know what items can be considered ‘goods’ to understand what constitutes ‘defective goods’. Goods mean every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.[1]
As per the Act “defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any 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.[2]
LANDMARK CASE
TTK Prestige Limited vs Akhil Bhartiya Grahak Panchayat Hindu Dharma Sanskrit Bhavan[3]
Facts:
In 1986, Mangesh Manohar Telrandhe (plaintiff) had purchased a new five-litre pressure cooker from M/s. Meghna Metals manufactured by M/s. T.T. (Pvt.) Ltd., for Rs.389. The cooker came with a guarantee period of ten years, i.e. the manufacturer issued a guarantee till 1996 for the same cooker. On November 10, 1989, while the complainant’s wife, Meenal Telrandhe was cooking, the Prestige cooker burst and exploded, injuring her right hand permanently. It also left her with a permanent disability and several other injuries. A complaint about the same was filed before the Maharashtra State Commission by Akhil Bhartiya Grahak Panchayat on behalf of the consumer. The complainants sought Rs 38,000 towards medical expenses and Rs 5 lakh on account of the permanent disability caused to Meenal.
Issue:
Whether the cooker qualified as a defective good or not under the Consumer Protection Act?
Judgement:
The State Commission, keeping in mind that the victim was a 30-year-old civil engineer and a mother of two small children, awarded a compensation of Rs 1 lakh, full reimbursement of medical expenses and Rs 1,000 towards costs. However, unhappy with this decision, the defendant filed an appeal before the National Consumer Disputes Redressal Commission.
Eventually, the apex consumer court highlighted that the bursting of the pressure cooker had been established, hence, making the cooker defective. The commission held that “By the doctrine of Res Ipsa Loquitor, it would only be because of a manufacturing defect in the absence of proof of misuse.” It also stated that “The inference is irresistible that the accident was caused due to defective goods. ”
Analysis:
The main contention for appeal was that the accident resulted from the consumer’s failure to follow the usage instructions of the pressure cooker which caused it to explode. Thus, the cooker was not defective; instead, it was the fault of the consumer.
On the contrary, the consumer organisation contended that if only the safety mechanisms in the cooker had worked, it would not have blown up. Thus, indicating that the pressure cooker was defective.
OTHER CASES:
- Failure to hand over the registration book along with the jeep purchased by the complainant is a defect. [Ramesh Chandra v. Commercial Tax Officer [1993] 3 CPR 182 (Ori.).]
- In Vyankatkrishnan Iyengar v. Shakti Foods [1994] 2 CPJ 652 (Mah.), a laboratory test report showed that the soft drink of the manufacturer was not fit for human consumption. Therefore, the court held that the good is defective.
- Gas Cylinders with excessive gas are defective goods – Dayanand A Avasare v. Bharat Petroleum Corporation Ltd. (1993) 1 CPR 278 (Mah.).
- Electric household appliances which are not in accordance with the standards prescribed by ISI, being unsafe are defective – Farooq Hazi Ismail Saya v. Gavabhai Bhesania (1991) 2 CPJ 452 (Guj.).
MEANING OF DEFICIENCY IN SERVICE
A “service” means service which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or loading or both, housing construction, entertainment, amusement or the purveying of news or other information.[4] However, it does not include rendering any service free of charge or under a contract of personal service. The definition includes eleven sectors per se, but it is not an exhaustive list. The three main prerequisites that a service must fulfil are:
- it must be made available to the potential users
- it should not be free of charge
- it should not be under a contract of personal service.
Hence, if any service is not up to the mark or is flawed such that it does not meet the mark of the laws applicable in the particular period, it is said to be deficient under Section 2(1)(g), Consumer Protection Act,1986. “Deficiency” means 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.[5]
In recent years, the rising service sector has led to an increased number of deficiency of service that has spread across various fields, especially in the medical field. It is noticed that such deficiency often causes inconvenience, physical or mental injury and, even death in aggravated cases. Therefore, it is of prime importance that these services are provided or performed with utmost proficiency by individuals. If not provided with care, severe damage can be caused to the receiver of such service. This damage may include physical, mental and economic loss.
The cases of deficiency of service are rampant in India due to inefficiency and negligence. Thus, the Consumer Protection Act is a way to penalise this negligent behaviour and curb negligent activities in future. It acts as a means of providing justice to those consumers who have suffered loss, inconvenience or injury.
LANDMARK CASE
All India Institute of Medical Sciences vs. Ayesha Begum[6]
Facts:
Ayesha Begum (complainant), a 50-year-old lady and resident of Bareilly (U.P.), had noticed a lump in her right breast. For medical examination of the lump, she underwent multiple medical tests. She approached the All India Institute of Medical Sciences for further examination since there were high chances that the lump in the breast may indicate breast cancer. On examination, she was subjected to radiotherapy, a medication that was not required in her case. Mrs Begum filed a complaint claiming compensation of Rs.19 lakhs with interest @18% per annum. She alleged medical negligence and deficiency in service on the part of AIIMS and Dr K. Verma of the Department of Pathology, having wrongly diagnosed her as a case of breast cancer and, as a result, surgically removed her right breast.
Issue:
Whether there was medical negligence on the part of the AIIMS doctor and department, resulting in the deficiency of service?
Judgement:
By the impugned order, the State Commission awarded a lump sum compensation of Rs.5 lakh for the mental agony, trauma, emotional suffering and disfigurement of her body, causing immense lifelong loss of conjugal bliss.
The court held that ” not only was the diagnosis wrong, but the examination of the complainant also was not proper. It is not a case of an error of judgement. It is a case of either medical negligence or incompetence of AIIMS doctors, as a result of which she underwent surgery and radiotherapy.”
The president of the State Consumer Commission, Justice J.D Kapoor, said, ” merely because the complainant consented, does not absolve the hospital from the charge of medical negligence.”
Analysis:
Service was deficient on the part of the medical professionals at AIIMS because of their negligent treatment. As a result, the service receiver suffered physical and mental injuries. In such cases, the Consumer Protection Act provides remedies to protect the interest of the service received from the service provider.
OTHER CASES
- In Poonam Verma v. Ashwin Patel [1996] II CPJ 1 SC, the doctor treated the complainant under the Allopathic system, though he was only qualified as a Homoeopathic practitioner. The complainant held the doctor liable for the wrong treatment given to her. The Commission held it as a deficiency in service.
- In South Eastern Railway v. Anand Prasad Sinha I [1991] CPJ 10 (12) NC, the complainant and his wife boarded a train. The compartment in which they travelled was in a bad state of affairs. The fans were not working, shutters of windows were not working, the rexin of the upper berth was severely torn, and rusty nails caused some injuries to the complainant’s wife . A complaint was filed against the railway department for deficiency in service. It was held that the complaint constituted ‘deficiency in service’ and compensation of Rs. 1500 was awarded to the complainant.
CONCLUSION
Based on the above study, we can say that India has many decided cases dealing with defective goods and deficiency of services. However, even after all the efforts, we still see that many provisions of the statute are not being utilised and implemented efficiently. Moreover, we come across how producers/ manufactures and marketers find loopholes in the existing law to exploit the consumers and suit their interests. Hence, today’s consumers need protection from goods and services that are not up to the mark, and it is the duty of the government to fulfil this need.
[1] Section 2(7) of the Sale of Goods Act, 1930
[2] Section 2(1)(f), Consumer Protection Act,1986
[3] TTK Prestige Limited vs Akhil Bhartiya Grahak Panchayat Hindu Dharma Sanskrit Bhavan, JT 1999 (10)SC 346
[4] Section 2(1)(o), Consumer Protection Act,1986
[5] Section 2(1)(g), Consumer Protection Act,1986
[6] 2010(3)C.P.C.558
Author: Prarthana Vasudevan,
Christ (Deemed to be University), 1st year B.A. L.L.B