Consumer Protection Council, Rourkela
TO THE CONSUMER PROTECTION ACT
The Consumer Protection (Amendment) Act, 2014, as made available
in the website of Department of Consumer Affairs, Government of India were
studied and our views / suggestions are given below:
88 pages of comparative statement indicating the existing provisions and
the amendments proposed have been gone through. Instead of including
the comments sub-section-wise, which in any case is not feasible in a pdf
document, our comments have been placed in the following pages, in relation
to the proposed amendments.
Chapter I (Preliminary)
Since the incorporation of amendments in these sections are primarily based
on the proposed amendments in the following Chapters, the changes that
will become necessary will be limited to the suggested amendments as submitted
herein; while the major amendments appear to be inessential, devoid of
any value addition to the consumer population and rather would result as
a drain on the scarce resources of the state.
Chapter II Consumer Protection Councils
Consumer Protection Act, 1986 was enacted with the following major objectives:
1. To safeguard the six consumer rights as envisaged in the Act, by:
(a) The mechanism of consultations through the Central and the State Councils consisting of different interest groups such as representatives of consumer organizations, the government State and Centre, trade and industry, consumer fora, especially, the National Commission and others.
(b) Time bound resolution of consumer disputes through the three tier quasi-judicial machinery constituted under the Act, with least expense to the consumer litigant.
This basic structure is well thought out and should not be disturbed through the amendments. The essence of democracy is participation of the people in the consultative process.
The proposed amendments by contemplating to eliminate the Central and State Councils is a cynical ploy to eliminate the consumer groups from the consultation and in a way rises serious questions about their relevance and role in safeguarding the consumers. So the proposal to convert the Consumer Protection Councils as existing under section-4 to Consumer Protection Authority is ill conceived and should be dropped, to save whatever little consumer movement is prevalent at present.
2. When the government is in dearth of resources, installing of a Consumer Protection Authority which is appearing to be an excuse to employ ex-bureaucrats and others, with the expenditure coming from the consolidated fund of India will only be a drain on the Tax Payers money without any tangible results coming around. Further, such bureaucrats as proposed will be provided with an opportunity to go on foreign trips to participate in international conferences, in the garb of cooperating and working with consumer protection agencies in foreign countries.
Thus, all the proposed amendments from sec.-4, sec.-5, sec.-6, sec.7, sec.-8, sec.-8A and sec.-8B and introduction of sec.-9, sec.-10, sec.-11, sec.-12 and sec.-13, warrant to be discarded.
As a matter of fact, the District Collector / District Magistrate, are
being envisaged to take additional responsibility to deal with the consumer
issues which come under the purview of the proposed Central Authority.
This proposal, on the basis of which the Central Consumer Protection Authority
has been envisaged, is practically non-workable at the grass-root level.
The absurdity is all the more obvious when one considers that at the state
level and central level, fully paid officials are expected to discharge
the functions of the Central Authority, while at the district level, where
the problems are supposed to emanate and be addressed, an already over
burdened District Collector is supposed to do it as a part of his routine.
Chapter III Consumer Disputes Redressal Agencies
Proposal to rename Commissions as Forums sec. 9(b), 9(c) and 9(d):
The rationale behind naming of the State Commissions and the National Commission
as the State Forums and the National Forum is not clear, while at the same
time the proposed amendments suggest that all the Forums should be collectively
known as Commission. No value addition and a source of confusion
and hence should be dropped.
Proposal to provide for common Forums for multiple districts, etc. (Provision under sec. 9):
As it is, the State Governments have been found to be lacking the interest or commitment in establishing the District Forum in each district and in manning them properly. Any concession to club the Forums of different districts as proposed will cause more hardship to the consumer litigants and will be detrimental to their wellbeing. As such, the proposed amendment should be dropped.
Rather, the efficacy of these bodies to provide faster justice with least
harassment should be aimed at. So, a provision can be introduced
to make the State Government liable to compensate the victims for the delays
necessitated due to non-functioning of such District Forums / State Commission.
Proposal to prevent members of political parties from Forum appointments sec. 10(1)(b)(ee), 16(1)(b)(ee) and 20(1)(b)(ee):
Amendments to prevent members of political parties from being appointed
as Members of the District Forums, State Commission and National Commission
Proposal to change the manner of appointment to District Forums sec. 10(1A):
The proposal to appoint the President and Members of District Forums through
the State Public Service Commission appears to be inherently cumbersome
and unworkable, especially for specialized short service requirements.
Instead, a sitting or retired judge of the High Court, as nominated by
the Chief Justice of the high Court would be better placed to head the
Proposal for enhancement of compensation of the presiding members sec. 10(3), 16(2) and 20(2):
Amendments for standardization and enhancement of remuneration of the Presiding
Members of the District Forums, State Commissions and the National Commission
are welcome. This will also attract capable individuals to man these
Proposal to exclude the value of compensation from the pecuniary jurisdiction of the Forum / Commission sec. (11):
Since a fee is already being collected based on the value of the complaint
and since logically the compensation claimed along with the value of the
goods or services needs to account for the total value of the complaint
dictating whether the said complaint will fall under which one of the three-tier
quasi-judicial machinery, excluding the value of compensation claimed from
the value of the litigation / pecuniary jurisdiction of the District Forum
/ State Commission is not rational. Further, the billed value of
goods or services utilized by any authorized person, say, as in the case
of public utilities like lifts / escalators / elevators, resulting in serious
injury, will not be able to obtain the billed value of the good / service,
putting the consumer litigant to avoidable harassment. After all,
the Forum / Commission has powers to dismiss frivolous complaints.
Thus, the billed value of the goods or services alone should not be the
basis to determine the pecuniary jurisdiction of the District Forum and
hence this proposal needs to be dropped.
Proposal to allow the consumer to file a case in the Forum / State Commission, within whose jurisdiction he resides sec. 11(2)(d) and 17(2)(d):
Allowing a complainant to file a consumer dispute case in any Forum / Commission
in whose jurisdiction he / she is residing or personally works for gain,
though could appear to be favouring the consumer, is ill-conceived, irrational
and appear to be illegal as to place the seller of goods / service provider
in an unreasonably disadvantageous position vis-à-vis the consumer
who avails the good / service. Further, there is a distinct possibility
of outstation shoppers taking the shopkeeper / service provider to ransom.
Hence, should be dropped.
Proposal to decide the case on merits based on available records sec. 13(2)(c):
Amendment to Sec. 13(2)(c), requiring the Forum to decide the case on merits
based on available records, instead of dismissing it when the consumer
fails to appear before it, is welcome.
Proposal to restrict the appearance of advocates sec. 13(8), sec. 18(2) and sec. 22(3):
Introduction of restrictions on the appearance of advocates are welcome.
Proposal to promote mediation through introduction of Sec. 13(A):
Introduction of sec. 13(A) to promote mediation is likely to frustrate
the ends of justice and harass the consumer litigant on account of further
delays and injustice. Hence, the proposed amendment as a part of
the consumer justice system under the Consumer Protection Act needs to
be dropped. Instead, the Consumer Affairs Department, if funds are
available for the purpose, can establish these Mediation Centres, through
the existing Voluntary Consumer Organisations or other means. Hence,
the proposed amendments and Chapter-IV need to be dropped.
Proposal to introduce quantification of punitive damages sec. 14(1)(d):
Quantification of punitive damages, under Sec. 14(1)(d) is welcome.
Proposal for enhancing penalty under Sec. 14(1)(hb):
The proposal to enhance the penalty under Sec. 14(1)(hb), when the goods
or services affect a large number of consumers, appears more of an hype.
This is so because, the consumer courts as well as the Supreme Court are
shying away from awarding any penalty even when tailor made cases are brought
before them. (Example: Original Petition No. 224 of 2001, in the NCDRC,
Consumer Protection Council, Rourkela Vs Indian Oil Corporation and Others;
Civil Appeal No. 10126 of 2010, in the Supreme Court, Consumer Protection
Council, Rourkela Vs Indian Oil Corporation Ltd. and Others.) In
this country seeking money by NGOs are still considered blasphemous a
sin height of hypocrisy. Further, why the entire penalty should
be diverted to the Consumer Welfare Fund (as per the CP Rules)? If
the government and the Department of Consumer Affairs are serious about
eliminating the Unfair Trade Practices, to encourage such initiatives,
some percentage of the penalty should be awarded to the VCO fighting the
Proposal to delimit the number of members with judicial background sec. 16(1)(b)(iii):
Proposed amendment to delete the provision after 16(1)(b)(iii), which limits
the members with judicial background to fifty per cent (50%), could pave
the way for eliminating the non-judicial members from the State Commissions.
This is against the structure of the quasi-judicial consumer courts, making
these Commissions vulnerable to become an extended arm of the Civil Courts;
which should be avoided. This proposed amendment which can change
the complexion of the Commissions (quasi-judicial body) should be dropped.
Proposal to make a sitting judge of the High Court to head the Selection Committee sec. 16(1A):
Providing for a sitting judge of the High Court to head the Selection Committee
in place of the President of the State Commission, to appoint the Members
of the State Commission is welcome as this will bring in more objectivity
in the appointments, rather than serving the political interests of the
Party in power.
Proposal to restrict Appeal to single stage sec. 19:
Amendment to Sec. 19, to restrict the appeal to single stage will seriously jeopardize dispensation of justice. Such restrictions can materially affect consumer justice and is ill-conceived; should be dropped. Further, when the orders of the State Commission can be appealed against, even as per the present amendments, how a distinction can be made between a case arising from the District Forum and those arising under the original jurisdiction of the State Commission itself, when both are decided by the same bench? The proposed amendment is irrational and without any logic.
As already stated above, Chapter-IV needs to be dropped and there will be no change in numbering of the Miscellaneous Chapter.
Since Consumer Protection Rules are to be amended as per the amended Consumer
Protection Act, by the concerned Ministry, it is not being commented upon.
Consumer Protection Act, as already existing, is one of the progressive
piece of legislations to have been enacted for the better protection of
the consumers. Unfortunately, the spirit of the Act has been missing
in its implementation. The present government and the department
will do well to bridge this gap, even if it is unable to bring in further
amendments to the CP Act.
Consumer Protection Council, Rourkela