Deficiency of Service
By Kalyani Abhyankar
MISSION VISION CORE VALUES
CHRIST is a nurturing ground for an individual’s Excellence and Service Faith in God | Moral Uprightness
holistic development to make effective contribution Love of Fellow Beings
to the society in a dynamic environment Social Responsibility | Pursuit of Excellence
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Complaint
• An aggrieved consumer seeks redressal
under the Act through the instrumentality of
complaint. It does not mean that the
consumer can complain against his each
and every problem. The Act has provided
certain grounds on which complaint can be
made. Similarly, relief against these
complaints can be granted within the
set pattern.
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• What constitutes a complaint [Section
2(6)] - "complaint" means any allegation in writing,
made by a complainant for obtaining any relief
provided by or under this Act, that— (i) an unfair
contract or unfair trade practice or a restrictive
trade practice has been adopted by any trader or
service provider; (ii) the goods bought by him or
agreed to be bought by him suffer from one or more
defects; (iii) the services hired or availed of or
agreed to be hired or availed of by him suffer from
any deficiency; (iv) a trader or a service provider, as
the case may be, has charged for the goods or for the
services mentioned in the complaint, a price in
excess of the price—
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• (b) displayed on the goods or any package containing
such goods; or (c) displayed on the price list exhibited by
him by or under any law for the time being in force; or
(d) agreed between the parties; (v) the goods, which are
hazardous to life and safety when used, are being offered
for sale to the public— (a) in contravention of standards
relating to safety of such goods as required to be
complied with, by or under any law for the time being in
force; (b) where the trader knows that the goods so
offered are unsafe to the public; (vi) the services which
are hazardous or likely to be hazardous to life and safety
of the public when used, are being offered by a person
who provides any service and who knows it to be
injurious to life and safety; (vii) a claim for product
liability action lies against the product manufacturer,
product seller or product service provider, as the case
may be;
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• Who can file a complaint [Sections 2(5)] - At the outset it is clear that a
person who can be termed as a consumer under the Act can make a
complaint. To be specific on this account, following are the persons
who can file a complaint under the Act :
• (a) a consumer; or
• (b) any voluntary consumer association registered under the
Companies Act, 1956 or under any other law for the time being in force,
or
• (c) the Central Government or any State Government,
• (d) one or more consumers, where there are numerious consumers
having the same interest.
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• In addition to the above following are also considered as a
consumer and hence they may file a complaint :
• Beneficiary of the goods/services : The definition of consumer
itself includes beneficiary of goods and services - K.B. Jayalax
mi v. Government of Tamil Nadu 1994(1) CPR 114.
• Where a young child is taken to the hospital by his parents and
the child is treated by the doctor, the parents of such a minor
child can file a complaint under the Act - Spring Meadows
Hospital v. Harjot Ahluwalia JT 1998(2) SC 620.
• Legal representative of the deceased consumer : The Act does
not expressly indicate that the LR of a consumer are also
included in its scope. But by
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• operation of law, the legal representatives get clothed with the rights,
status and personality of the deceased. Thus the expression consumer
would include legal representative of the deceased consumer and he
can exercise his right for the purpose of enforcing the cause of action
which has devolved on him - Cosmopolitan Hospital v. Smt. Vasantha
P. Nair (1) 1992 CPJ NC 302.
• Legal heirs of the deceased consumer : A legal heir of the deceased
consumer can well maintain a complaint under the Act - Joseph Alias
Animon v. Dr. Elizabeth Zachariah (1) 1997 CPJ 96.
• Husband of the consumer : In the Indian conditions, women may be
illiterate, educated women may be unaware of their legal rights, thus a
husband can file and prosecute complaint under the Consumer
Protection Act on behalf of his spouse - Punjab National Bank, Bombay
v. K.B. Shetty 1991 (2) CPR 633.
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• A relative of consumer : When a consumer signs the
original complaint, it can be initiated by his/her relative -
Motibai Dalvi Hospital v. M.I. Govilkar 1992 (1) CPR
408.
• Insurance company : Where Insurance company pays
and settles the claim of the insured and the insured
person transfers his rights in the insured goods to the
company, it can file a complaint for the loss caused to the
insured goods by negligence of goods/service providers.
For example, when loss is caused to such goods because
of negligence of transport company, the insurance
company can file a claim against the transport company -
New India Assurance Company Ltd. v. Green Transport
Co. II 1991 CPJ (1) Delhi.
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• What a complaint must contain [Section 2(6)] - A complaint must
contain any of the following allegations :
• (a) An unfair trade practice or a restrictive trade practice has been
adopted by any trader;
• Example : A sold a six months old car to B representing it to be a
new one. Here B can make a complaint against A for following an
unfair trade practice.
• (b) The goods bought by him or agreed to be bought by him suffer
from one or more defects;
• Example : A bought a computer from B. It was not working
properly since day one. A can make a complaint against B for supplying
him a defective computer.
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• (c) The services hired or availed of or agreed to be hired or availed of
by him suffer from deficiency in any respect.
• Example : A hired services of an advocate to defend himself
against his landlord. The advocate did not appear every time the case
was scheduled. A can make a complaint against the advocate.
• (d) A trader has charged for the goods mentioned in the complaint a
price in excess of the price fixed by or under any law for the time being
in force or displayed on the goods or any package containing such
goods.
• Example : A bought a sack of cement from B who charged him
Rs. 100 over and above the reserve price of the cement declared by the
Government. Here A can make a complaint against
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• 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.
• Example : A bought a tin of disinfectant
powder. It had lid which was to be opened in a
specific manner. Trader did not inform. A about
this. While opening the lid in ordinary way, some
powder flew in the eyes of A which affected his
vision. Here A can make a complaint against the
trader.
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When a complaint cannot be filed - A complaint on behalf of the
public which consists of unidentifiable consumers cannot be filed
under the Act
• Example : A complaint was filed on the basis of
a newspaper report that passengers travelling
by flight No. 1C-401 from Calcutta to Delhi on
May 13, 1989 were made to stay at the airport
and the flight was delayed by 90 minutes
causing great inconvenience to the passengers.
It was held that such a general complaint
cannot be entertained. No passenger who
boarded that plane came forward or authorised
the complainant to make the complaint
- Consumer Education and Research Society,
Ahmedabad v. Indian Airlines
Corporation, New Delhi (1992) 1 CPJ 38 NC.
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• An unregistered association cannot file a
complaint under the Act.
• Example : The complainant was an association
formed in the Gulf and was unregistered in
India. It was held that since the petitioner was
not a voluntary organization registered under
any law in force in India, cannot come within
clause (d) of section 2(1) of the Act and hence
can’t file a complaint - Gulf Trivendrum air Fare
Forum v. Chairman & Managing Director, Air
India 1991 (2) CPR 129.
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• A complaint after expiry of limitation period
is not permitted. A complaint cannot be
filed after the lapse of two years from the
date on which the cause of action arise
unless the Forum is satisfied about the
genuineness of the reason for not filing
complaint within the prescribed
time-Section 2(69)
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• Dismissal of frivolous and vexatious
complaints - Since the Act provides for an
inexpensive procedure (Court fees is not
charged in consumer complaints under the Act)
for filing complaints, there is a possibility that
the Act is misused by people for filing vexations
claims. To discourage frivolous and vexatious
claims, the Act has provided that such
complaints will be dismissed and the
complainant can be charged with the costs not
exceeding Rs. 10,000.
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• Example : A filed a complaint against B to
recover compensation of
Rs. 55,99,000 with the motive of indulging
in speculative litigation taking undue
advantage of the fact that no court fee was
payable under the Consumer Protection Act.
The National Commission held that the
complainant has totally failed to make a
case against B, and dismissed the complaint
as frivolous and vexatious imposing Rs.
10,000 as costs to A - Brij Mohan
Kher v. Dr. N.H. Banka I 1995 CPJ 99 NC.
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