Special issue with the Sunday Magazine
CONSUMER : October 31, 1999
A forum for redressal
The author is legal coordinator, Citizen Consumer and Civil Action Group, Chennai.
Twenty-five years ago, consumer action in India was virtually unheard of. It consisted of some action by individuals, usually addressing their own grievances. Even this was greatly limited by the resources available with these individuals. There was little organised effort or attempts to take up wider issues that affected classes of consumers or the general public.
All this changed in the Eighties with the Supreme Court-led concept of public interest litigation. It gave individuals and the newly formed consumer groups, access to the law and introduced in their work the broad public interest perspective.
Several important legislative changes took place during this period. Significant were the amendments to the Monopolies and Restrictive Trade Practices Act (hereafter "MRTP Act") and the Essential Commodities Acts, and the introduction of the Environment Protection Act and the Consumer Protection Act. These changes shifted the focus of law from merely regulating the private and public sectors to actively protecting consumer interests.
The Consumer Protection Act, 1986 (hereafter "the Act") is a remarkable piece of legislation for its focus and clear objective, the minimal technical and legalistic procedures, providing access to redressal systems and the composition of courts with a majority of non-legal background members.
The Act establishes a hierarchy of courts, with at least one District Forum at the district level (Chennai has two), a State Commission at the State capitals and the National Commission at New Delhi. The pecuniary jurisdiction of the District Forum is up to Rs. one lakh and that of the State Commission is above Rs. one lakh and below Rs. 10 lakhs. All claims involving more than Rs. 10 lakhs are filed directly before the National Commission. Appeals from the District Forum are to be filed before the State Commission and from there to the National Commission, within thirty days of knowledge of the order.
CONSUMER RIGHTS AVAILABLE
Under the Act, a consumer or any registered voluntary consumer association or any Central or State Government can make a complaint. A "consumer" is a person who buys any goods or hires any service for consideration, paid or promised or partly paid or under deferred payment. This includes any user of such goods or services when such use is made with the approval of the person who paid or partly paid etc. However, goods obtained for commercial purposes or for resale are not covered under the Act.
Complaints can be made against (a) unfair trade practices by which complainants suffer loss or damage; (b) goods that suffer from one or more defects; or (c) deficient service.
The procedure adopted by the Forum or Commission on receipt of a complaint is to refer a copy of the complaint to the Opposite Party directing them to file their version within thirty days or such extended period not exceeding fifteen days at a time. The Forum or Commission has the powers vested in a civil court and these include the power to summon and examine witnesses, requisition reports of analysis or tests from appropriate laboratories and to receive evidence by way of affidavits.
Based on its findings, the Forum or Commission can grant a direction to the Opposite Party to remove the defect, replace the goods free of defect, or refund the charges paid for the goods or service and to pay compensation for the loss or injury suffered by the complainant. Such directions are to be treated as if it was a decree of a court, and non-compliance can amount to imprisonment.
Delays: The biggest problem with the Consumer Forums and Commissions is one of inordinate delays. Even though a time period of three months has been recommended for the disposal of complaints (five months, when laboratory analysis is required), hardly any Forum or Commission complies with this recommendation. This can be remedied by not permitting any adjournments and by allowing the presence of a lawyer only with the consent of the forum and the Opposite Party.
Definition of a 'consumer': Consumer Forums have repeatedly held the payment of consideration for goods or service to be the critical aspect in determining a consumer. Therefore the non-maintenance of waiting rooms in railway stations or the non-provision of streetlights, despite being deficient services, cannot be brought before the Consumer Forum. This narrow definition has let several service providers continue to provide shabby and poor service. A wider interpretation of the Act is required to remedy this situation.
Delay in appointments: For several months in a year, many Forums and Commissions do not function due to the vacancy in office of either the President or one of the Members. To illustrate, the office of the President of the Tamil Nadu State Commission has been vacant since May 11, 1999. Similarly, the Chennai District Forum (South) has been without a President since April 14, 1999. The Chennai District Forum (North) has been without its non-legal Members since June 30, 1999. As a result, no work has taken place in any of these places after those dates. Appointments must be made in advance so that consumers do not suffer.
Difficulty in Executing Orders: Consumers face enormous difficulty in executing the orders of the Consumer Forum and Commission. This is because the Consumer Forum cannot attach properties of those not complying with their orders; they can only issue arrest warrants. Right now to attach the properties of defaulters, the case is transferred to the nearest civil court and the process of recovery is tedious. This can be remedied if power to attach is given to the Consumer Forum, along with the power to appoint a Receiver.
Interpretation of law: Non-judicial members of the Forum and Commission are often unable to assert themselves due to the amount of legalese used. As a result, several orders of the Commissions have been based purely on technical and procedural grounds. This defeats the purpose of the Consumer Protection Act. This can be remedied if a uniform basis of appointing individuals to these posts is adopted - uniform in terms of knowledge and experience. Further, regular training programmes and refresher courses must be conducted for the Members.
Specific limitations in the 1986 Act: Several provisions of the Act, when implemented, strictly work against the interests of consumers at large. For example, an association of flat owners cannot file a compliant against the builder of their apartment, since they are not recognised under the Act as being a collective of consumers. They are required to file individual cases against the builder. Similarly, the prohibition on filing a complaint against defective goods purchased "for commercial purposes", prohibit a tailor from filing a complaint against a company that supplies him a defective sewing machine. This works against the intent of the Act. Suitable amendments to the Act and interpreting the Act as a beneficial legislation will remedy these problems.
Despite the Act being legislated in 1986, Consumer Forums and Commissions were not set up in Tamil Nadu until 1991. Given is a tabulation of the total number of Original Petitions and Appeal Petitions filed at the State Commission from the date of inception of the Courts in 1991, till April 30, 1999 and their current status. The table also carries details about the number of Original Petitions filed in the two District Forums in Chennai, as also the total number of Original Petitions filed in the several District Forums throughout the State, and their current status.
In 1998 alone, 270 Original Petitions and 871 appeals were filed at the State Commission. This year, between January and April 1999, 107 Original Petitions and 275 appeals have been filed. This shows a marked increase in the number of cases being filed under the Consumer Protection Act, 1986.
OTHER LAWS THAT IMPACT CONSUMERS
Essential Commodities Act: Any complaint of hoarding or unfair trade practice against the thirty-four commodities listed as essential commodities under this Act can be preferred to the special courts established under the Act.
Standards of Weights and Measures Act and Rules: This Act prescribes standards for the weights and measures used in trade. These standards ought to be certified by the Bureau of Indian Standards (BIS) and contain the "ISI" mark. This also prescribes rules for packaged commodities. The rules explain the details that a package should contain - like the maximum retail price (MRP), weight of the commodity, date of manufacture and expiry.
MRTP Act: This Act establishes a Central Commission to initiate suo motu action against restrictive and unfair trade practices and also to hear and pass orders on complaints. The aim of the Act is to stop any trade practice that may have the effect of preventing, distorting or restricting competition or causes loss or injury to consumers.
Prevention of Food Adulter-ation Act: This Act contains stringent provisions against adulterators of food articles. The Act also prescribes a set of officers to check the quality and quantity of food in public establishments.
Drugs and Cosmetics Act: This Act prescribes officers to enforce its various provisions and also prescribes stringent action against manufacturers of drugs and cosmetics for violations under this Act.
Baring a few recent notable exceptions, the Tamil Nadu government has been rather indifferent in its attitude to implementing the Act. Despite the Act being legislated in 1986, it was only as late as in 1991 that the Redressal Forums were set up. In reality, several districts in Tamil Nadu still do not possess their own functional District Forum. A study conducted by FEDCOT (Federation of Consumer Organisations in Tamil Nadu) in 1998, revealed that of the 29 districts in Tamil Nadu, six did not possess Consumer Forums. Six other districts shared the District forum with another six districts. Twelve years after the act was notified, only 17 districts out of the 29 districts in Tamil Nadu have their own exclusive District Forums.
For several months on end, vacancies in the legal and non-legal members in the Forum are not filled up. These delays in appointment bring the working of the Act to a complete halt. The inadequate support personnel, inadequate provision of typewriters and other basic equipment, and non-existence of library facilities etc. all show the government's attitude towards working the Act. After several requests by consumer groups, a training programme and refresher course was held for the first time for the non-legal members in 1998.
Further, the government is yet to file a complaint, even though it is empowered to do so, under the Act. Until recently, the government had even failed to conduct a single significant consumer awareness programme in the entire State. It is only the strong consumer movement in Tamil Nadu, and the Press, that has carried the 1986 Act to the people at large.
REACTIONS TO THE ACT
The public sector service providers, which provide almost all basic public utilities, including telecommunications, water supply and electricity have by and large, very poor track records of customer service. They function within strong bureaucratic processes and are normally opaque and unfriendly. They rarely respond to individual complaints and occasionally respond when consumer groups or other pressure groups complain. As a rule, they prefer to wait for a Court order or Forum decision before resolving any dispute. Even then, they prefer to keep appealing at various levels, till they win or till they tire out the consumer. However, with privatisation looming large, some public sector service providers have begun proactive consumer awareness programmes. Combined with the information providing Citizen's Charters, we are hopefully beginning to see a more consumer-friendly public sector.
Traditionally, the relationship between private business and the consumer movement has not been smooth. While on one hand, we have several consumer-unfriendly private business, we also have frivolous (consumer) litigators. As a result each views the other with suspicion. However, there are several private sector players who place consumer interests as a priority. These manufacturers and service providers normally resolve individual complaints on their own. However, this is on a case-to-case basis. Unfortunately, the law is not strong enough to protect consumers from fly-by-night operators or intentional defaulters. This is one large lacunae in consumer protection mechanisms and continues to plague consumer attitude towards a private sector manufacturer or service provider.
The activities of consumer groups and the functioning of the various Forums and Commissions under the Act has, without doubt,raised the general level of consumer awareness in the entire country. Due to the stronger presence of consumers and markets in urban India, consumer action is by and large an urban consumer-led activity.
Significantly, the Act, and the related legal framework has provided the basis for consumer organisations like CAG (Citizen, Consumer and Civic Action Group) to create alternate forums for consumer complaint redressal. At CAG, a complaint is received and examined to see if it is a consumer dispute or not. If it is a consumer dispute, attempt is made to obtain the Opposite party's response and then to mediate a solution to the dispute. Manufacturers, service providers and consumers alike, often prefer the CAG-type dispute resolution, since it is easily accessible, free and provides both parties a "win-win" situation.
However the complaint redressal done by groups like CAG, only marginally help reduce the workload of the Consumer Forums and Commissions. Despite these advancements and the overall growth of the consumer movement, the several problems that exist in the actual redressal of complaints in the Consumer Forums and Commissions have to be individually remedied if we have to further strengthen the Indian consumer.
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