PRACTICE UNDER CONSUMER PROTECTION ACT, 1986 – PART- II

[Mr. M. GOVINDARAJAN]

 COMPLAINT;

Sec.12, Sec. 13 and Sec. 14 deals the procedure for disposal of the complaint by the District Forum. Sec. 18 provides that the provisions of Sec. 12, 13 and 14 and the rules made there under for the disposal of complaints by the District Forum shall, with such modifications, as may be necessary be applicable to the disposal of the disputes by the State Commissioner. Likewise Sec. 22 provides that the provisions of Sec. 12, 13 and 14 and the rules made there under for the disposal of complaints by the District Forum shall, with such modifications as may be considered necessary by the Commission, be applicable to the disposal of disputes by the National Commission. The Central Government for the purpose of National Commission framed the Consumer Protection Rules, 1987 and each State Government for the purpose of State Commission and District Forum frames respective Rules.

Sec. 12 of the Act provides the manner in which complaint shall be made. A complaint may be filed only after a consumer dispute raised on defective goods or deficiency in service. A complaint may be filed with a District Forum by-

• the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;

• any recognized consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;

• one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of all, consumers so interested; or

• the Central Government or the State Government either in its individual capacity or as a representative of interests of the consumers in general.

Every complaint filed shall be accompanied with such amount of fee and payable in such manner as may be prescribed. There is no prescribed form for filing complaint. Even a post card sent by a consumer in which he makes a complaint is admitted as a complaint earlier when there was no fee was prescribed. The complaint may be in a booklet form enclosing the copies of documentary evidences. Since the opposite parties are to be provided the copy of the complaint the copies of the complaint shall be according to the number of opposite parties in the complaint.

LIMITATION:

Sec. 24A of the Act provides the limitation period for filing a complaint. The limitation period is 2 years from the date of cause of action. A complaint may be entertained after two years if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period. The District Forum shall record its reasons for condoning such delay.

ADMISSION OF REJECTION OF A COMPLAINT:

On receipt of the complaint the District Forum may, by order, allow the complaint to be proceeded with or rejected. A complaint shall not be rejected unless an opportunity of being heard has been given to the complainant. The admissibility of the complaint shall ordinarily be decided within 21 days from the date on which the complaint was received. Where a complaint has been admitted by the District Forum it shall not be transferred to any other Court or Tribunal or any authority set up by or under any other law for the time being in force.

PROCEDURE ON ADMISSION OF COMPLAINT:

Where a complaint is allowed to be proceeded with the District Forum may proceed with the complaint in the manner provider under Sec. 13 of the Act. The complaint may be on-

• deficiency in services;

• defective goods;

• defective goods, the defect of which cannot be determined without proper analysis or test of the goods.

The procedure of deficiency in services and defective goods are the same. Separate procedure is there for defective goods, the defect of which cannot be determined without proper analysis of test of the goods.

Deficiency in services/defective goods:

• A copy of the complaint shall be forwarded by the District Forum to the opposite party directing him to give his version of the case within a period of 30 days. Extension may be given not exceeding fifteen days by the District Forum;

• Where the opposite part, on receipt of a copy of the complaint sent to him, denies or disputes the allegations contained in the complaint or omits to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute-

1. on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint; or

2. ex parte on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum;

• where the complainant fails to appear on the date of hearing before the District forum, the District Forum may either dismiss the complaint for default or decide it on merits.

Defective goods for which test is required:

• A copy of the complaint shall be forwarded by the District Forum to the opposite party directing him to give his version of the case within a period of 30 days. Extension may be given not exceeding fifteen days by the District Forum;

• Where the opposite party, on receipt of a copy of the complaint sent to him, denies or disputes the allegations contained in the complaint or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute as follows:

• Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in manner prescribed;

• Then the District Forum shall refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect;

• The concerned laboratory shall report its findings to the District Forum within a period of 45 days of the receipt of reference or within such extended period as may be granted by the District Forum;

• The complainant may be required to deposit to the credit of the Forum such fees as may be specified for payment to the appropriate laboratory for carrying out the necessary analysis or test in relation to the goods in question;

• On receipt of the report from the laboratory a copy of the same along with such remarks as the District Forum may feel appropriate shall be sent to the opposite party;

• If any of the parties disputes the correctness of the findings of the appropriate laboratory, or disputes the correctness of the methods of analysis or test adopted by the appropriate laboratory, the District Forum shall require the opposite party or the complainant to submit in writing his objections in regard to the report made by the appropriate laboratory;

• The District Forum shall thereafter give a reasonable opportunity to the complainant as well as the opposite party of being heard as to the correctness or otherwise of the report made by the appropriate laboratory and also as to the objection made in relation thereto and issue appropriate order.

SERVICE OF NOTICE, ETC.,:

The service of notice maybe made by delivering or transmitting a copy thereof by registered post acknowledgement to opposite party against whom complaint is made or to the complainant by speed post or by such courier service as are approved by the District forum, the State Commission or the National Commission, as the case may be, or by any other means of transmission of documents including FAX message.

When an acknowledgment or any other receipt to be signed by the opposite party or his agent or by the complainant is received by the Forum or postal article containing the notice is received back by the Forum, with an endorsement to have been made by a postal employee or by any person authorized by the courier service to the effect that the opposite party or his agent or complainant had refused to take delivery of the postal article containing the notice or had refused to accept notice by any other means when tendered or transmitted to him, the forum shall declare that the notice had been duly served on the opposite part or to the complainant.

Where the notice was properly addressed, pre paid and duly sent by registered post acknowledgement due, a declaration shall be made notwithstanding the fact that the acknowledgment had been lost or mislaid or for any other reason, has not been received by the Forum within thirty days from the date of issue of notice.

POWERS OF DISTRICT FORUM:

The District Forum shall have the same powers as vested in a civil court under Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely:-

• the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;

• the discovery and production of any document or other material object producible as evidence;

• the reception of evidence on affidavits;

• the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;

• issuing any commission for the examination of any witness, and

• any other matter which may be prescribed.

OTHER POINTS:

• Every proceeding shall be conducted by the President of the District Forum and at least one member thereof sitting together;

• Where a member, for any reason, is unable to conduct a proceeding till it is completed, the President and the other member shall continue the proceedings from the stage at which it was last heard by the previous member;

• No act or proceedings shall be invalid by reason only of the existence of any vacancy amongst its members or any defect in the constitution thereof;

• In the event of death of a complaint who is a consumer or of the opposite party against whom the complaint has been filed, the provisions of Order XXII of the First Schedule to Code of Civil Procedure, 1908 shall apply subject to the modification that every reference therein to the plaintiff and the defendant shall be construed as reference to a complainant or the opposite party, as the case may be;

• Every complaint shall be heard as expeditiously as possible. The complaint, which does not require analysis of commodities shall be decided within a period of 3 months from the date of receipt of notice by opposite party; if it requires analysis of testing the time to be taken is 5 months;

• In the event of a complaint being disposed of after the period specified above the District Forum shall record in writing, the reasons for the same at the time of disposing of the said complaint;

• The District Forum, it appears to it necessary, may pass such interim order as is just and proper in the facts and circumstances of the case;

• No adjournment shall be ordinarily granted by the District Forum unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing;

• The District Forum shall make such orders as to the costs occasioned by the adjournment as may be provided in the regulations made under this Act;

• After the proceeding is completed if the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are provide, it shall issue an order to the opposite party;

• Every order made by the District Forum shall be signed by its President and the member or members who conducted the proceedings;

• Where the proceeding is conducted by the President and one member and they differ on any point or points, they shall state the point or points on which they differ and refer the same to the other member for hearing on such point or points and the opinion of the majority shall be the order of the District Forum;

• The order may direct the opposite party to do one or more of the following:

  • to remove the defect pointed out by the appropriate laboratory from the goods in question;

  • to replace the goods with new goods of similar description which shall be free from any defect;

  • to return to the complainant the price, or, as the case may be, the charges paid by the complainant;

  • to ay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party; the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit;

  • to remove the defects in goods or deficiencies in services in question;

  • to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;

  • not to offer the hazardous goods for sale;

  • to withdraw the hazardous goods from being offered for sale;

  • to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature;

  • to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently; the minimum amount of sum so payable shall not be less than 5% of the value of such defective goods sold or services provided, as the case may be to such consumers; the amount so obtained shall be credit in favor of such person and utilized in such manner as may be prescribed;

  • to issue corrective advertisement to neutralize the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement;

  • to provide adequate costs to parties;

FINALITY OF ORDERS:

Every order of a District Forum, State Commission or the National Commission shall, if no appeal has been preferred against such order within the limitation period, shall be final.

 

 ENFORCEMENT OF ORDER:

Where an interim order made under the Act is not complied with, the District Forum or the State Commission or the National Commission, as the case may be, may order the property of the person, not complying with such order to be attached. No attachment shall remain in force for more than 3 months at the end of which, if the non compliance continues, the property attached shall be sold and out of the proceeds thereof, the District Forum or the State Commission or the National Commission may award such damages as it thinks fit to the complainant and shall pay the balance, if any, to the party entitled thereto.

Where any amount is due from any person under an order may by a District Forum, State Commission or the National Commission as the case may be, the person entitled to the amount may make an application to the District Forum, the State Commission or the National Commission, as the case may be, and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the District and the Collector shall proceed to recover the amount in the same manner in the same manner as arrears of land revenue.

FIRVOLOUS OR VEXATIOUS COMPLAINTS:

Where a complaint is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding Rs.10,000/- as may be specified in the order.

APPEAL:

Appeal before State Commission against order of District Forum:

Sec. 15 of the Act provides that any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of 30 days from the date of the order, in such form and manner as may be prescribed. The State Commission may entertain an appeal after the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing it within that period. No appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner 50% of the amount or Rs.25,000/- whichever is less.

Appeal before National Commission against the Order of State Commission:

Section 19 of the Act provides that any person aggrieved by an order made by the State Commission may prefer an appeal against such order to the National Commission within a period of 30 days from the date of the order in such form and manner as may be prescribed. The National Commission may entertain an appeal after the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing it within that period. No appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner 50% of the amount orRs.35,000/- whichever is less.

Sec. 19A provides that an appeal filed before the State Commission or the National Commission shall be heard as expeditiously as possible and an endeavor shall be made to finally dispose of the appeal within a period of 90 days from the date of admission. No adjournment shall be ordinarily granted by the State Commission or the national commission as the case may be, unless sufficient cause is shown and the reasons for grant of adjournment have been recorded by writing by such commission. The Commission shall make such orders as to the costs occasioned by the adjournment as may be provided in regulations made under this Act. In the event of an appeal being disposed of after the period so specified the State Commission or the National Commission, as the case may be, shall record in writing the reasons for the same at the time of disposal of the said appeal;

Appeal before Supreme Court against the order of National Commission:

Sec. 23 of the Act provides that any person aggrieved by an order issued by the National Commission may prefer an appeal may prefer an appeal against such order to the Supreme Court within a period of 30 days from the date of order. The Supreme Court may entertain an appeal after the expiry of the said period of 30 days from the date of order if it is satisfied that there was sufficient cause for not filing it within that period. No appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited in the prescribed manner 50%of the amount or Rs.50,000/-whichever is less.