1.

1 Introduction

Finally a 3 decade old Consumer Protection Act 1986 has been replaced by Consumer
Protection Act, 2019. This replacement was the need of modern Indian consumer. If we look at
statistics it is projected that nearly 329 million Indian citizens are going to buy products online,
which means 70% of mobile internet users will shop online. If we look at this number then we
can say that new consumer protection act 2019 is going to be very helpful to Indian consumers.
New consumer protection bill has many new provisions for customers. It is designed to help
customers and it tries to overcome problems in providing basic rights to consumers of a major
sector called e-commerce. There are six basic rights of a consumer in India, Right to safety,
Right to Choose, Right to be informed, Right to consumer education, Right to be heard and Right
to seek redressal. New consumer protection bill helps to protect these rights by applying new
methods and procedures.

1.2 Definition of Consumer

In Old consumer protection act definition of consumer was only limited to buying goods or
services, it did not talk about online purchase or offline purchase or teleshopping etc. New act
has expanded the definition of consumer it includes description about online transactions and
offline tractions, teleshopping and multi-level marketing and direct selling. Now new act also
covers online transactions old act was also covering online transactions but there was not
description included about online and offline transaction in old consumer protection act.

1.3 Regulatory Authority

In Consumer protection act 1986 there was no dedicated regulating authority for protection of
consumer rights, but in Consumer protection act 2019 Government of India is planning to start
new regulating authority named Central Consumer Protection Authority (CCPA) . CCPA will
develop easy process or plans for protecting consumers from harms arising from defective
products or services and it will also develop process for protecting consumers from unfair trade
practices. Main objective of Central Consumer Protection Authority is going to be render advice
on promotion and protection of the consumers' rights under this Act. Also CCPA will have
highest powers for recalling of products or withdrawal of services which are dangerous and
hazardous or unsafe etc. Under new Consumer Protection Act, 2019 each state will have State
Consumer Protection Council also known as State Council. Also each district will have its own
district council which will be governed by District collector.

1.4 Improvements in Pecuniary Jurisdiction

Old limits of pecuniary have been improved in new consumer protection act. In old act district
consumer court was allowed to handle cases for goods or services worth value up to 20 lacs only
not this limit has been increased up to 1 crore. State Consumer courts were allowed to handle
cases for goods or services worth value 20 lakh to 1 crore, now in new act this limit has been
increased now state consumer court can handle cases having value worth 1 crore to 10 crore and
national court will handle cases in which value of goods or services is more than 10 crore. If we
look at new act then we can see that new act has given district and state courts more power now.
Consumers will not have to go to national court for getting help which is a really nice
improvement.

1.5 Product Liability

Concept of Product Liability has been introduced in new Consumer Protection act, 2019. Old act
was talking about only physical injuries6 but new act also talks about mental agony or emotional
distress caused by product. For example a product does not injure you but it injures your
property and because of that you get into emotional distress then also you can file case against
the manufacturer of product. Product manufacturer will also held liable even if manufacturer was
not included while selling of the product. So manufacturers will have to manufacture good
quality products only. If we look of this new concept product liability then we can see that
government is now forcing manufactures to make good products so consumers can stay protected
which a really nice improvement is in new act.

1.6 Unfair Trading Practices

One of the biggest improvement is that new act has broaden the definition of unfair trading
practices. New act tells that customer’s private data such should not be disclosed to any other
person or organization without discloser from the customer. I find this improvement very good
because when you visit any car showroom or bank etc. they collect your personal data such as
your phone number, email, how much money you earn etc. and they sell this data to other
companies or people for money which is a really bad and unfair trade practice because when they
sell this personal data to other people then other companies starts calling you, emailing you about
their products which is really big mental harassment for consumers.

1.7 Misleading Advertisements

New act talks in detail about misleading advertisements or false representation of products. Now
not only manufacturer but also endorser will be held liable for misleading or false
advertisements. This is a big improvement. Old act did not talk about it in detail. According to
new act the fine for misleading or false advertisement for endorser is 10 lac rupees which can
extend up to 50 lac rupees and ban on endorser or endorser manufacturer. Also endorser will
have to verify the claims that product is claiming before endorsing thet product. If endorser
found guilty in investigation of CCPA then he/she will have to pay fine of 10 lac rupees which
can be extended up to 50 lac rupees. New act also says that if manufacturer or endorser found
guilty they are liable for 2 years imprisonment.

1.8 Mediation

New consumer protection act provides mediation for resolving disputes quickly which makes
solving disputes easier than before. Now each state will have mediation cell branches which will
help consumer courts to reduce their pressure who already have many pending old cases.

1.9 E-commerce Platforms

New consumer protecting act tell that ecommerce will be governed under by all laws that
applies to direct selling of product or service8 . Now ecommerce sites will have to disclose their
seller’s details such as seller’s contact number, email id, website and detained address etc. to the
buyers. Also there are strict penalties for selling counterfeit products on these ecommerce
platforms.
 Conclusion

Finally government has taken consumers seriously. If we look at the new consumer protection
act then we can see that many new terms have been added to law. Government is taking online
frauds seriously. But there is no mention about banking frauds because many banks say that open
account in their banks with 0Rs. you don’t have to worry about any charges but after opening
bank account if you don’t maintain certain amount in your bank account then they charge you
with some fine. Fine is not huge in most cases it is around 50Rs. but if we calculate fine for
many citizens then amount becomes huge. Government need to specific guidelines for banks for
these kind of misleading advertisements.
2.1 Introduction

Healthcare has emerged as one of the largest service sectors in India. Health sector in India is the
responsibility of the state, local and also the central government. But majority of healthcare
services in India are provided by the private sector. Greater sanctity and respect is attached to
that profession. But now days, it has become commercialization. Many of them are not adhering
to their professional ethics and code of the conduct. With increasing day by day professional
misconduct and negligence in the field of the medical profession has been raised various issues
in this concern. In order to make them accountable and liable for their misconduct, as per the
consumer protection Act 1986, a patient is “consumer” and the medical services provided to
him/her will fall under the ambit of the definition of the services provided under the consumer
protection act. And whenever there is deficiency in the services, the consumer court can take the
matters within its jurisdiction subjection to the pecuniary limitation.

2.2 Professional Negligence

In the law of negligence, professionals such as lawyers, doctors, architects and others are
included in the category of persons professing some special skill or skilled persons generally.
Any task which is required to be performed with a special skill would generally be admitted or
undertaken to be performed only if the person possesses the requisite skill for performing that
task. Judged by a certain standard, a professional may be held liable for negligence on one of two
findings:
1. Either he was not possessed of the requisite skill which he professed to have possessed, or
2. He did not exercise, with reasonable competence in the given case, the skill which he did
possess.
These are two standards upon which a pro can be held liable.
Also, these grounds have to be proved without any reasonable doubt.

2.3 Consumer Protection Act and Medical Negligence

One of the important milestones in the area of the consumer protection in the country has been
the enactment of the Consumer protection Act in the year of the 1986. This is the Act came into
existence to provide justice and aid in various sphere of the human activity one of them is
medical services. The definition of the consumer defined in the Act is wide enough to encompass
not only the goods but also the services. The Consumer Protection Act of 1986 was enacted with
an objective to provide better protection of the interests of the Consumers, to make provision for
the establishment of Consumer Councils and other authorities for the settlement of consumer
disputes. This is indeed a very unique and highly progressive piece of Social Welfare
Legislation. The provisions of this Act are intended to provide effective and efficient safeguards
to the consumers against various types of exploitations and unfair dealings. Unlike other laws,
which are basically punitive or preventive in nature, the provisions of the Act are compensatory.
Medical negligence or medical malpractice entails professional negligence due to an act or
omission by a health care provider in which the treatment provided by him/her falls below the
accepted standard of practice in the medical community and this treatment results in injury to the
patient or in extreme cases, death of the patient.
There are four vital elements in a case of medical negligence. They are-
1. A duty was owed: It is necessarily important to show that the doctor or medical
practitioner owed a duty of care to the plaintiff where the latter opted for the medical
treatment.
2. The duty was breached: The plaintiff must prove that the health provider did not
comply to the required and standard care, thus breaching his/her duty.
3. The breach caused an injury: There was a breach of duty and this breach was an
immediate cause to the injury to the plaintiff.
4. Damage: Without damage, there is no basis for a claim, regardless of whether the
medical provider was negligent. However, damage can also occur without any
negligence. An example for it is when someone dies due to a fatal disease.

2.4 Indian Judiciary and Medical Negligence

The Supreme Court in Indian Medical Association v. V.P Shantha and Others Case has clearly
reiterated that, services rendered to a patient by a medical practitioner (except where the doctor
render services free of charge to every patient or under a contract of personal service) by way of
consultation, diagnosis and treatment, both medical and surgical, would fall within the ambit of
service as defined in section 2(1) (o) of the Consumer Protection Act 1986.
The judgement has faced a lot of opposition from the people involved in the medical field.
However, this judgement has come as a wave of relief for all the consumers. With rampant
increase in commercialisation of services which also includes medical services, the patient has
now become a mere consumer. This definitely causes deterioration in the fiduciary relationship
between a doctor and his/her patient. This judgement which extends the arms of the Consumer
Protection Act, 1986 to the medical profession will surely enable to keep a check on the doctors
so that they perform their duties diligently, for it is always the patient’s life that is at stake. It will
make the process of treatment and surgery more transparent. One negative aspect about this
judgement is that it does not prescribe any relief or compensation who avail free medical
services. As a consequence, only doctors who work in paid hospitals come under the scanner
while those who work in hospitals offering free medical services will go scot-free if they commit
any blunder. Also the burden of proof is on the patient to prove that there was negligence on part
of the doctor. Instead, the burden of proof should be shifted onto the doctor to prove that he was
diligent enough while performing his duties.
Whatever is upheld by the Supreme Court in the case of V. P shantha case not followed
in the case of Achutrao Haribhau Khodwa v. State of Maharashtra.
In instant case court refused to hold either doctor or government liable for death caused due to
the negligence on the part of the doctor. In such case doctor left towel inside abdomen while
conducting the operation. The court held that neither the doctor nor the government is liable
unless it is proved that the death was caused due to leaving towel inside the abdomen. It is
humble submission with great respect that, leaving a towel itself amount to the negligence on the
part of the doctors.
However, The Supreme Court took a very progressive view in the case of Spring Meadows
Hospital v. Harjot Ahluwalia.
In instant case Court held that, when a young child was taken to a private hospital by parents and
treated by the doctors, and then not only the child but his parents also treated as consumer under
the Consumer protection Act. Hence, parent can claim the Compensation under the Consumer
protection Act.
Hence, court, ruled in favour of the parents of the child, and the child who was the beneficiary
of the service. The hospital argued that sufficient care had indeed been taken, and therefore
would not be entitled to pay compensation for the mental agony the parents went through. They
contended that the parents would not come under the definition of consumer, in the consumer
protection act. The court rightly pointed out that this contention was false since the definition of
consumer under the act does clearly include parents as well.

2.5 Necessity Of The Consumer Protection Act, And Its Application To The Medical

Profession

This is the foremost question which comes to the mind of the doctors. This necessity arose
because the existing laws of the land which provide for action in cases of medical negligence
under the Law of Tort and Indian Penal Code have some well documented problems. These
include the following:

(i) Delay, which, in medical negligence cases, tends to be greater;

(ii) The cost of bringing an action, which is notoriously high in relation to the sums recovered in
damages;
(iii) limited access to the courts ;
(iv) Success depends on proof of both negligence and causation (which can be particularly
difficult in cases of medical negligence).
Hence necessity to provide for an alternate system which would be easily accessible, speed and
cheap, gave birth to the Consumer Protection Act. This Act was made applicable to the doctors
because there are no provisions in the Indian Medical Council Act, 1956:
(i) To entertain any complaint from the patient;
(ii) To take action against the Medical Practitioner in case any negligence has been committed;
(iii) To award any compensation, etc. in case the negligence is proved.