Consumer Protection Act, 1986

Objectives:

1. Seeks to promote and protect the rights of consumers

A. Right to be protected against goods which are hazardous to life and property
B. Right to be informed about the quantity, quality, potency, purity standard and price of
goods to protect consumer against unfair trade practices
C. Right to be assured, wherever possible, access to an authority of goods at competitive
prices
D. Right to be heard and to be assured that consumers interests will receive due
consideration at appropriate forums
E. Right to seek redressal at appropriate unfair trade practices or unscrupulous
exploitation of consumers
F. Right to consumer education
2. It aims at helping the consumers in getting quicker or speedy redressal of their grievances
through specially established quasi judicial agencies instead of filling a suit in civil court. Court
fee is not required to be paid for filing the complaint.
3. This Act consists of 31 sections covering various aspects of consumer protection rights
4. Enables consumers to fight with the wrongdoers who have cheated him by misleading
information or inferior service or commodities.

Scope:

The Act extends to the whole of India except Jammu and Kashmir and applies to all goods and services
unless otherwise notified by Central Government.

The Act received President's assent in 24)12/1986. Howeverz all provisions of the Act except those
relating to establishment, composition, jurisdiction etc of Consumer Dispute Agencies came into force
on 15/04/1987.

 Section 2(1)(b) – COMPLAINANT

Complainant as defined under S 2(1)(b) means:

i. A consumer, or
ii. Any voluntary consumer association registered under the Companies Act, 1956 or under any
law for the time being in force
iii. Central Government or State Government
iv. One or more consumers, where there are numerous consumers having same interest.
v. Death of a consumer, his legal heir or representative.

 Section 2(1)©
Section 2(1) © by which it means any allegation by the complainant in writing with a view to obtaining
any relief in regard to the following matters:

i. An unfair trade practice or restrictive trade practice has been adopted by any trader or
service provider.
ii. The goods brought by him or agreed to be brought by him suffer from one or more defects
iii. Services hired or availed of or agreed to be hired or availed of by him suffer from deficiency
in any respect.
iv. A trader or the services provider as the case may be, has charged for the goods or the
services mentioned in the complaint, a price in excess of the price-
A. Fixed by or under any law for the time being in force
B. Displayed on the goods or any package containing such goods.
C. Displayed on the price list exhibited by him or under any law for time being in force
D. Agreed between the parties

v. Goods which will be hazardous to life and safety of such goods as required to be complied
with, by or under any law for the time being in force.
A. In contravention of any standards relating to safety of such goods as required to be
compiled with by or under any law for the time being in force.
B. If the trader could have known with due diligence that the goods so offered are unsafe
to the public.
vi. Services which are hazardous or likely to be hazardous to life and safety of the public when
used, are being offered by the service provider which such person could have known with
due diligence to be injurious to life and safety.

Any view to obtain relief provided by or under this Act.

 Goods' suffer from defects-

The consumer protection Act, 1886 defines the term 'goods' in section 2(1)(i) as it has been defined
in the section 2(7 of the Sales of Goods Act, 1930 which means-

Goods is every kind of movable property other then actionable claims and money and includes stock
and shares, growing crops, grass and things attached to or forming part of the land which are agreed
to be severed before sale or under the contract of sale.

“Defect” has been defined under Section 2(1)(f) as any fault, imperfection or shortcomings in the
quality, quantity, potency, standard which is required to be maintained by or under law for the time
being in force or implied, or as is claimed by trader in any manner whatsoever in relation to the
goods.

Defect in goods means lack or absence of something essential for its completeness. If a seller fails to
deliver the goods which he agreed to sell.
 Ex: provisions of enactments such as the Drug & Cosmetics Act, 1950, the Prevention of Food
Adulteration Act, 1955, the Indian Standards Institutions Act, 1952 or any rules framed under such
enactment or contravention of conditions or implied warranties under Sale of Goods Act, 1930.

 Section 2(1)©(v) – Goods hazardous to life and safety

This ground of complaint was inserted by amednment in 1993. It says that goods hazardous to life and
safety when used, if, offered for sale to the public in contravention of the provision of any law for the
time being in force requiring traders to display information in regard the contents, manner and effect of
use of such goods.

 Section 2(1)(d)

Consumer means any person who –

I. Buys any goods for a consideration which has been paid or promised or partly paid
and partly promises, or under any system of deferred payment and includes any
user of such goods other than person who buys such goods for consideration paid or
promised or partly paid or partly promised, or under any system of deferred
payment when such use is made with the approval of such person, but does not
include a person who obtains such goods for resale or for any commercial purpose.

II. Hires or avails of any service for a consideration which has been paid or promised or
partly paid and partly promised, or under any system or deferred payment and
includes any beneficiary of such services other then the perosn who 'hires or avails
of the services for consideration paid or promised, or partly paid and partly
promised, or under any system of deferred payments when such service are availed
of with the approval of the first mentioned person but doesnot include a person
who avails of such services for any commercial purpose.

Case : Laxmi Engg Works v PSG industrial Institute - 'commercial purpose on qof'
Bhupendra Jang Bahadur Guna v Regional Manager - 'purchase of tractor and use in others
land'
Narasamma v LIC – beneficiary of service (widow of policy holder) compensated for loss
suffered by her due to negligence of LIC
Laxiben Laxmichand Shah v Sakerben Kanji Chandan – service should be provided. Mere
lease agreement with landlord not considered as consumer

 Goods purchased for consideration (2(1)(d)(i)

Three kinds of persons considered as consumer –

a. Person buying goods for consideration and consideration having been paid in
full or promised or partly paid or partly promised.
b. Person buying goods under any system or deferred payment
c. Any user of such goods which has been purchased as under a and b above.
 Goods purchased for re sale or commercial purpose not under the purview of
this Act. (Commercial purpose)

Case : Morgan Stanley Mutual Fund v Kartik Das – application for allotment of
shares cannot constitute goods. It is after allotment, rights may arise as per
the articles of association of the company. At the stage of application, there is
no purchase of goods for consideration and again the purchaser cannot be
called the hirer of services for consideration.

 Section 2(1)(o) Deficiency in service

In an action on the 'deficiency of service' there is a need to have service. As defined under s 2(1)(o),
“service” means service of any description which is made available to potential users and includes, but
not limited to, the provision of facilities in connection with banking, finance, insurance, transport,
processing, supply of electrical or other energy, board or loadging or both, housing construction,
entertainment, amusement or the purveying of news or other information but does not include
rendering of any service free of charge or under a contract of personal service.

Case: Medical Assn v VP Shantha – potential services were to emphasis services which are in public use
and thus cover all professions.

 Section 2(1) (. R) – unfair trade practices

Unfair trade practices means a trade practice which for the purpose of promoting the sale, use or supply
of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive
practice including any of the following-

1. Practice of making any statement, whether orally or in writing or by visible representation which
i. Falsely represents that the goods are of particular standard, quality, quantity, grade,
composition, style or model
ii Falsely represents that the services are of a particular standard, quality or grade
Iii. Falsely represents any re built, second hand, renovated, re conditioned or old goods as new
goods
Iv. Represents that the goods or services have sponsorship, approval, performance z
characteristics, accessories, uses of benefits which such goods or services donot have
V. Represents that the seller or the supplier has a sponsorship or approval or affiliation which
such seller or supplier doesn’t have

Vi makes a false or misleading representation concerning the need for, the usefulness of, any
goods or services

Vii. Gives to the public any warranty or guarantee of the performance, efficacy or length of
life of a product or of any goods that is not based on an adequate or proper test ( when such
defence is raised such burden of proof shall lie on person raising self defence )

Viii. Makes to the public a representation in a form that purports to be –

 A. Warranty or guarantee of a pdt or of any good or services
B. Promise to replace, maintain or repair an article or any part or to repeat to continue s
service until it has achieved a specified result if such purported warranty or
guarantee or promise is materially misleading or if there is no reasonable prospect
that such warranty, guarantee or promise will be carried out.

Ix. Materially misleads public concerning the price at which a pdr or like products or goods or services
have been or are ordinarily sold or provided.- representation as to be price Unless specified on whose
representation is made

W. Gives false or misleading facts disparaging goods, services or trade if another person.

 Section 2(1)(r) (2) – bargaining price

A price that is stated in any advertisement to be a bargian price, by reference to an ordinary price or
otherwise or price that a person who reads, hears or sees rhe advertisement would reasonably
understand to be a bargian price at which product advertised or like piducts are ordinary sold

Case : Nestle India Ltd v UOI – FSSAI who banned Maggi noodles after it found execsss level of lead in
samples, terming it as “undafe and hazardous” for human consumption. 640 cr compensation

Colgate Palmolive India v Anchor Health & Beauty Care – defendant came out with commercial which
claimed that Anchor contained Triclosan, Calcium and Fluoride and was the first toothpaste providing all
round protection.

 Section 2(1) (nnn) “restrictive trade practices

A trade practice which tends to bring about manipulation of price or its conditions of delivery or to
affect flow of supplies in the market relating to goods or services in such a manner as to impose on the
consumers unjustified costs or restrictions shall include-

A. Delay beyond period agreed to by a trader in supply of such goods or in providing the services
which has led or is likely to lead rise in price
B. Any trade practice which requires a consumer to buy, hire, avail or any goods or the case may be
, services as condition precedent to buying, hiring, availing of other goods or services.

 Section 2 (1) oo- spurious goods and services

Such goods and services which are claimed to be genuine but they’re actually not so

 Trader – 2(1)(p) trader – any person who sells or distributes any goods for sale and includes the
manufacturer thereof and where such goods are sold or distributed in package form includes
packer thereof
NUISANCE

Nuisance has been defined to be anything done to the hurt or annoyance of lands, tenements,
hereditaments of another, and not amounting to a trespass.

Two categories :

1. Public Nuisance
2. Private Nuisance

Public Nuisance-

a person is guilty of a public nuisance who does any act, or is guilty of an illegal omission, which causes
any common injury, danger or annoyance to the public or to the people in general who dwell or occupy
property in the vicinity or which must necessarily cause injury, obstruction, danger, annoyance to
persons who may have occasion to use any public right.

Acts which seriously interfere with the health, safety, comfort or convenience of the public generally or
which tend to degrade public morals have been considered public nuisance.

It can be subject of only one action. It depends on a great measure upon the number of houses and the
concourse of people in the vicinity.

In order that an individual may have a private right of action in respect of a public nuisance –

a. He must show a particular injury to himself beyond that which is suffered

by the rest of public.
b. Such an injury must be of a particular, substantial and direct and more a
mere consequential injury.

Case: Soltau v De Held (ringing of bells)

Land mortgage bank of india v Ahmedboy Habibboy and Kesowram Ramanand ( smoke and noise of
cotton mills)

Campbell b Paddington Corporation (Obstruction of view)

Dwyer v Mansfield ( obstruction of formation of queue)

Private Nuisance-

They are of three kinds :

i. Nuisance by encroachment on a neighbour’s land

ii. Nuisance by a direct physical injury to a neighbour’sland
iii. Nuisance by interference with a neighbour’squiet enjoyment of land
 Private nuisance has defined by Winfield as unlawful interference with a person’suse
or enjoyment of land, or some right over, or in connection with it.

Elements:

i. Undue or unreasonable interference – some unwarranted interferences which cause

damage to the plaintiff. It refers to that which exceeds the limited usuage in the society.

Case : Radhey Shyam v Gur Prasad (restrain in installment of flour mill)

Usha Ben v Bhagya Laxmi Chitra Mandir (religious feelings doesn’t constitute actionable wrong)

Heath v Mayor of Brighton ( buzzing sound causing annoyance of one doesn’t constitute nuisance)
(abnormal sensitive person)

Note : if defendant is intentionally doing something to cause annoyance to plaintiff the defendants
intent is certainly a relevant factoe in nuisance. An act which otherwise might be lawful may become a
nuisance if done with malice.

Case : Christie v Davey (purposely disturbing the neighbours as they play music because they like it )

ii. Interference must be with the use of enjoyment of land

Interference may cause either:
A. Injury to property
B. Injury to comfort of health of an occupier of land

Case : Brijbala Prasad v Patna Municipal Corporation (drainage system not repaired by Municipality
causing special damage to plaintiff)

iii. Damage, actual or presumed – actual damage is required to be proved when the case of
nuisance arises. In case of public nuisance, the action is brought against the defendant,
when the plaintiff proves special damage to him. But when the nuisance is related to other
than physical damage to property, damage is presumed by law without imposing upon the
plaintiff the difficult task of furnishing strict proof of it.

 Defences to Nuisance –
1. Prescription – Prescription can legalise a nuisance. Prescription is a special defence and
the right to continue a private nuisance may be acquired as easement by prescription.

Case : Sturges v Bridgemen ( continued noise fr 20 years an sudden action from plaintiff
wouldn’t amount to nuisance)
 2. Statutory Authority – if a statute has authorised to do a particular act, all remedies
whether by way of indictment or action are taken away provided that every reasonable
precaution. Consistent with exercise of statutory power have been taken. The liability
for nuisance cannot be avoided where the act authorised by the statute has been done
negligently.

 Remedies-
1. Abatement- it means the removal of nuisance by the person affected but the
removal must be peaceful. A prior notice is necessary if, to remove nuisance,
the defendant's territory has to be crossed.
2. Injunction- if nuisance is such that it is of permanent character and is impending
then the injunction can be obtained from the court only.
3. Damages- remedies are available to a person for nuisance if the plaintiff shows
that he has suffered damage to his person or property.

Private nuisance Public nuisance

It is an injury to individual in
particular
In case of private nuisance, the
plaintiff may file a suit in civil
court for damage or injunction
It can be legalized by
prescription
The plaintiff is awarded
compensation
Plaintiff must prove
interference with enjoyment of
land
It is an injury to public at large
The plaintiff has to prove that
he has suffered particular
damage beyond that which was
suffered by entire community
It can never be legalized
Punishment is given
Not necessarily linked with the
use of land

Private Nuisance Trespass

Private Nuisance is an injury to
some right necessarily
connected with possession
It is actionable only on proof of
actual damage
Involves unreasonable
Interference with other’sland
Trespass is an injury to
possession itself
Trespass is actionable per se
Entry upon another’s land,
which is unauthorised without
causing any injury constitutes
trespass
 Interference may not be direct Involves direct Interference
but consequential
Interference may happen The interference is always
through the medium of through some tangible object
intangible objects such as smell,
vibration etc

Negligence –

Negligently is the breach of duty caused by the omission to do something which a reasonable man
guided by those considerations which ordinarily regulate the conduct of human affairs would do or
doing something which a prudent and reasonable man would not do.

Three constituents of negligence-

1. A legal duty to exercise due care on the part of the party complained of towards the parly
complaining the former’s conduct within the scope of duty.
2. Breach of the said duty.
3. Consequential damage.

Damage is the starting point and necessary ingredient of the cause of action.

Negligence is a factual issue and can only be established through cogent evidence.

Case : Jacob Mathew – civil and criminal negligence. Element of mens rea must be shown to exist. The
degree of negligence should be much higher in criminal negligence and neither gross not of a higher
degree may provide a ground for action in civil law but cannot form the basis of prosecution.

Constituent 1 – existence of duty: a legal duty to exercise due care

Existence of a duty situation or a duty to take care is essential before a person can be held liable in
negligence.

Conditions for existence of duty:

a. Forseeability and proximity – duty of care is to avoid acts and omissions which
one can reasonably forsee would be likely to injure another. This is the
principle of forseeability.
This duty is not owed to everyone who is likely to be injured but only to
persons who are so closely and directly affected by one’sact that it is
reasonable for one to have them in contemplation. This is Principle or
proximity.

Case : Donoghue v Stevenson (negligence on the purchase of ginger beer)

Home office v Dorset Yacht Co Ltd. (Borstal trainees damaging yacht)

b. Just and Reasonable -

Case Haley v London Electricity Board (blind man falling in trench dug)

Carmarthenshire County Council v Lewis ( driver’sdead to save a small child)

Dr M Mayi Gowda v State of Karnataka (elephant’s joy ride)

Rural Transport Service v Bezlum Bibi (contributory negligence of passengers. Driver and conductor took
passengers on roof of bus)

Note : Reasonable forseeability doesnot mean remote possibility

Case : Bolton v Stone (batsman hitting ball to injure people. Injured 6 people before. Case of negligence
but liable on the basis of negligence)

Constituent 2 : Breach of duty

Breach of duty means non observance of due care which is required in a particular situation. The law
requires taking of 3 points into consideration to determine the standard of care reauired:

a. Importance of object to be attained –

Case : K Nagireddi v Government or Andhra Pradesh ( construction of canal by govt)
Latimer v AEC Ltd (worker who died even after the Corporation took emasures to stop
slipeeriness of floor)

b. Magnitude of the risk –

Case Kerala State Electricity Board v Suresh Kumar (electric wire )
Glasgow Corporation v Taylor (poisonous plants eaten by boy in Botanical Garden)

c. Amount of consideration for which services are offered –

Case: Klaus Mittelbachert v East India Hotels Ltd (injury to a diver in a 5 star hotel)

Manchester Corporation v Markland ( delay in repairing water pipe)

Sorabji Batlivala v Jamshedji Wadia (throw out from motor car)
Bolton v Stone( no reasonable forseeability when a cricket ball hit a person being on side road of
residential houses)

 Burden of proof in an action for negligence –

In case of negligence, the onus is on plaintiff to prove the action of defendant due to which he has
sustained injuries. He must prove the act or omission of the defendant so that the defendant could be
held liable for damages. The act or omission must also be proximate cause of damage to the plaintiff.
Case : KC Kumaran b Vallabh Das Vasanji – (once negligence proved by plaintiff, onus on defendant to
prove contributory negligence)

Onus of proving contributory negligence is on the defendant.

 Explain the maxim Res Ipsa Loqitur with help of cases:

To prove the negligence of the defendant by the plaintiff may sometimes cause hardship to the plaintiff
if he could not know what precise acts or omissions led to his injury or damage and that the cause of
damage was only known to the defendant.

In such a situation, the maxim Res Ipsa loquitur may be applied. It is a rule of evidence. It means that
things speak for itself i.e the facts and circumstances which the plaintiff has proved establish a prima
facie case of negligence against the defendant.

The crux of the matter is that the accident should tell it’s own story and make a picture of negligence on
the part of defendant.

Ex : Mohan v Osborne (doctor left towel isnide stomach of patient)

There are two requirements for applying this maxim-

i. The thing causing the damage must be under the control of defendant or his servsnt-

evidence of negligence on the part of defendant is necessary which caused the accident. The
control is actual or not, not necessary, mere right to control is sufficient to hold the person
responsible for the accident.
It is not necessary that all the circumstances which led to the accident will be under the
control of defendant (Moore v R Fox and Sons) and if there are other persons besides the
defendant under whom the control was existed then mere happening of accident is
insufficient evidence against the defendant (Gee v Metropolitan)

ii. Accident must be such as could not in the ordinary course or things have happened without
negligence-

If the fact of the accident itself justifies the inference or negligence then all the
circumstances may be considered with experience and wisdom. The judge also takes notice
of the common experience of mankind.

Case : Bryne v Broadle (barrel of flour will.not fall from an upstairs window on to a passerby
on streer if those in charge take proper care)

Municipal Corporation of Delhi v Sibhagwati (,clock tower will.bot fall onto a passer by in
street if those in charge take proper care)
 Cates v Mongini Bros ( falling of ceiling fan)

iii. The accident must be such as could not in the ordinary course of things have happened
without negligence.

In the case of Muncipal Corporation of Delhi v Subhagwanti- (clock tower)

Consequent damage – plaintiff’s damage must be caused by defendant’s breach of duty and not to any
other cause. Even if the damage is caused by the defendant's breach of duty the defendant will not be
liable if the damage is too remote a consequence of it, or it may be case of contributory negligence.

 Defences for Negligence-

i. Contributory Negligence
ii. Act of God
iii. Inevitable Accident

Contributory Negligence –

if someone has committed a negligent act and other person is not avoiding the consequence arising out
of that negligent act even when means and opportunity were afforded to do so is called contributory
negligence.

It is based on the maxims volenti non fit injuria and in jure Jon remote causa sed proxima spectatur

The question of contributory negligence arises when there has been some act or omission on the
claimant’s part, which has materially contributed to the damage caused and is of such a nature that it
may properly be described as negligence. Thus to hold that the conduct of the claimant amounted to
contributory negligence, there has to be some causal connection with the damage suffered by the
plaintiff.

The defence of contributory negligence means that the deceased or the plaintiff failed to take
reasonable care of his own safety which was a material contributory factor to his death or injury.

The Courts devised the rule of last opportunity which meant that if the defendant had the last
opportunity to avoid the accident resulting in injury he was held solely responsible for the injury inspite
of fact that the plaintiff was also negligent.

Case : Yoginder Paul Cjowdhury v Durgadas (pedestrian to cross road as contributory Negligence)

Vis Major or Act of God –

Any natural phenomenon like earthquake, volcano, tornado, jhrricane, flood which is so straight, violent,
direct, sudden and irresistible act which could not by any amount of human care and skill could have
been resisted.

Case : Nugent v Smith ( defence must be cause causans and not mere cause sine qua non)

Nichols v Marsland (artificial lakes bursted due to long spell of rain)

Inevitable Accident -

It is also a type of defence in an action for negligence.

 Composite Negligence –

When the negligence is committed by two or more persons, then such negligence is called as composite
negligence. The term 'composite negligence' is used in our country for both kinds of cases : independent
tort fessors and joint tort feasors. In composite negligence, liability of the tort feasors is joint and
several. In such a situation, no body is allowed to say that there should be apportionment of damages
and his liability should be on the basis of his fault. The judgement delivered against the composite
tortfeasors is for a single sum without any apportionment and it is the discretion of the plaintiff to
enforce the whole of his claim against any one of the defendannts. If one defendant has paid more than
his share, he may claim contribution from other defendants.

Case: Hira Devi v Bhabha Kant Das (accident between negligent bus driver and car driver)

Economic Tort-

The tort of procuring a breach of contract, intimation, unlawful interference and conspiracy are
generally described as economic torts.

Two main categories:

i. Procuring a breach of contract

ii. Causing loss by unlawful means