Law of Torts, MV Act and

Consumer Protection
eSeries
S.22
S.2(5) of the Consumer Protection Act defines "complainant“ as :
(i) a consumer; or
(ii) any voluntary consumer association registered under any law for
the time being in force; or
(iii) the Central Government or any State Government; or
(iv) the Central Authority; or
(v) one or more consumers, where there are numerous consumers
having the same interest; or
(vi) in case of death of a consumer, his legal heir or legal
representative; or
(vii) in case of a consumer being a minor, his parent or legal guardian;
(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—
(a) fixed by or under any law for the time being in force; or
(Continued…)
(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;
• Consider the case of Chairman Thiruvalluvar Transport Corporation v. Consumer Protection
Council MANU/SC/0263/1995:
[Facts:
Shri K. Kumar was travelling from Kombakonam to Thanjavur on the night between 2nd and 3rd
June, 1990 in an omnibus which met with an accident near village Vayalur while trying to avert a
bullock-cart
It appears that when the bus driver was in the process of over-taking the bullock-cart, the bullocks
got panicky whereupon the driver swerved the bus to the left and ran into the branches of a tree
on the road side resulting in damage to the vehicle; the window panes were smashed
As the vehicle had suddenly swerved when the driver applied the brakes Shri K. Kumar who was
sitting in the center of the rear seat was thrown in the front and hit his head against the iron side-
bar, sustaining a serious head injury
Subsequently he succumbed to the injury
Matter was brought before the Consumer Council
Issue: Whether complaint was sustainable in light of a special mechanism under Motor Vehicles
Act
(Continued…)
Decision:
The Supreme Court questioning the jurisdiction of the National Commission to
entertain the claim application held that clearly the Motor Vehicles Claims Tribunal
constituted for the area in question, had jurisdiction to entertain any claim for
compensation arising out of the fatal accident since such a claim application would
clearly fall within the ambit of the Motor Vehicles Act
The MV Act 1988 Act can be said to be a Special Act in relation to claims of
compensation arising out of the use of motor vehicle.
The Consumer Protection Act is a law dealing with the question of extending
protection to consumers in general, could, therefore, be said to be a general law in
relation to the specific provisions concerning accidents arising out of the use of motor
vehicles found in the Motor Vehicles Act
Ordinarily the general law must yield to the special law
The Supreme Court struck down the jurisdiction of the NCDR but interestingly upheld
the compensation awarded by the NCDR in light of justice]
• Consider the case of Arun Kumar Gupta v. Employees State Insurance Corporation 1998 (II) CPC 456:
[Facts:
The complainant, Arun Kumar Gupta, submitted medical bills amounting to Rs. 39,170 to the Director of
Employees State Insurance Scheme
The complainant failed to get reimbursement which resulted in filing a complaint
Issue: Whether the complaint was sustainable in light of a special act for ESI
Decision:
The ESI Act is the outcome of welfare policy of State to provide for certain benefits to employees in the case
of sickness, maternity and employment, injury and to make provision for certain other matters in relation
thereto
The object of the ESI Act is to secure benefits like sickness benefit, maternity benefit, disablement benefit
and medical benefits to the employees covered under the provisions of the Act
Section 74 of the ESI Act provides that "the State Government shall, by notification in the official Gazette,
constitute an Employees‘ Insurance Court of such local area as may be specified in the notification“
Sub-section (3) of Section 75 of the ESI Act lays down: "No Civil Court shall have jurisdiction to decide ordeal
with any question or dispute as aforesaid to adjudicate on any liability which by or under this Act is to be
decided by (a Medical Board, or by a medical appeal, Tribunal or by the Employees' Insurance Court).
(Continued…)
The right to claim reimbursement is conferred by the ESI Act which also
provides efficacions remedy for enforcement of such right
As such, the ESI Act is a special Act in relation to claims regarding
reimbursement from the Corporation
Whereas the Consumer Protection Act of 1986, being a law dealing with
question of extending protection to consumer in general could, therefore,
be said to be a general law in relation to specific provisions concerning
the benefits conferred under the provisions of the EST Act, 1940 and the
remedy provided there to enforce those benefits
Ordinarily, the general law must yield to the special law
Thus the NCDR stated that since the ESI Act was a special Act the remedy
available to the complainant was to approach the ESI Court for
appropriate relief]
• Consider the case of In Re: Authorized Representative of the Parties and Voluntary Organisation in
Interest of Consumer Education v. Registrar Tamil Nadu State Consumer Disputes Redressal
MANU/CF/0008/2003:
[Facts:
A complaint was filed in the State Commission by a widow mother and two minor children of deceased
K.N. Subramanian
The complaint relates to medical negligence of Dr. Rangabashyam and the Apollo Hospital Chennai
The complaint was filed through Shri N. Chandrasekaran as an authorized agent; He was the Secretary
of Consumer Welfare Foundation, Chennai
Shri N. Chandrasekaran also signed the complaint as a Counsel for the complainant
State Commission immediately raised a doubt as to whether it was legally permissible for an authorized
agent like Shri N. Chandrasekaran to have a right of audience before even the complaint was admitted
The State Commission refused a right of audience to Shri N. Chandrashekharan
[Comment: The NCDR concerned itself with this question and not with the merits of the complaint]
Issue: Where complaint is filed by authorized agent, will such person have a right of audience other
than mere physical presence
(Continued…)
Decision:
The NCDR referred to the Bombay High Court decision in Sanjay Kothari v. South Mumbai Consumer
Dispute Redressal Forum MANU/MH/0594/2002 where the High Court had stated that:
“if 'to appear' meant only physical presence before the Consumer Forum for the purposes of filing
complaint, appeal, or reply on behalf of the party, it would create a very strange situation before the
Consumer Forum/State Commission.
If an authorised agent alone appears on the date/dates of hearing, neither the hearing will proceed
further nor the consumer forum will be able to either dismiss the complaint for default or decide it on
merit or decide it ex parte.
Consider situation like this: The Act permits the aggrieved consumer to file complaint through
recognised consumer association. In the complaint, consumer association appears through its office
bearer as its recognised agent. Does the law compel such complainant-association who is espousing the
cause of consumer, engagement of legal practitioner to address the Consumer Forum. Answer is simple
no.
Once the complaint is filed by aggrieved consumer through recognised consumer association, the
authorised agent appearing for such recognised consumer association is expected to take the complaint
to logical conclusion by full participation in the complaint proceedings”
(Continued…)
The NCDR stated that authorised agent and voluntary consumer organization in the Act
have certainly right of audience before the Consumer Forum and that right cannot be
taken away by referring to the provisions of the Code which have no application.
The Act itself is a departure from the ordinary procedure prescribed in the Code and thus
the shackles of procedure have to be broken which is too technical in civil jurisprudence
Keeping in mind that the composition of consumer courts is such that it includes not only
judicial members but also non-judicial members from the field of administration and
social work this envisages a new approach, which is to be shorn of the shackles of
procedural law so that access to justice is easy and simple
In this context, to say, that a consumer association cannot plead the case of the consumer
or an association cannot appear before a consumer court will be to defeat the purposes of
the Act itself
Therefore Recognized Consumer associations and authorized agents should have the right
of audience before the for a under the Act
(Continued…)
But the NCDR warned that while a Consumer Forum will permit an
authorised agent to appear before it but authorised agent will not
be one who has used this as a profession to earn his livelihood
A Consumer Forum has to guard itself against unscrupulous
authorised agents who exploit the consumer for their own benefit
and have no interest of the consumer to his heart and stranger to
consumer movement
A Consumer Forum can certainly examine the qualification,
relationship and antecedent of an authorised agent when he
represents a consumer
It can certainly forbid such an authorised agent for appearing
before it in any particular complaint, appeal or revision]