14 april 2020 22:27:00 ist documents (98)
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Date and Time: 14 April 2020 22:27:00 IST
Job Number: 114579463
Documents (98)
1. [85.001] Consumer Protection in the age of Vedas and Smritis
Client/Matter: -None-
2. [85.002] In General
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3. [85.003] Where trader tampered with scales, measures and the like
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4. [85.004] Where the trader behaved dishonestly
Client/Matter: -None-
5. [85.005] Other instances of fraud by traders
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6. [85.006] Builder’s liability
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7. [85.007] Liability of masters and employers
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8. [85.008] Liability of carrier
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9. [85.009] Liability of debtors
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10. [85.010] Sale
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11. [85.012] Guidelines for consumer protection
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12. [85.013] Consumer protection laws in different countries
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13. [85.015] Legislation protecting consumer interests
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14. [85.014] Enforcement of the Consumer Protection Act 1986 as amended by Act 62/2002 w.e.f. 15 March
2003
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15. [85.016] Introduction
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16. [85.017] Objects of the Consumer Protection Act 1986
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17. [85.018] Mimansa rules of interpretation
Client/Matter: -None-
18. [85.019] Preliminary
Client/Matter: -None-
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19. [85.020] General rules
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20. [85.021] Statement of objects and reasons of a statute
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21. [85.025] Marginal notes
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22. [85.026] Illustrations
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23. [85.027] Proviso
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24. [85.028] Exceptions and saving clauses
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25. [85.029] Use of rules in interpretation
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26. [85.030] Fictions
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27. [85.031] Explanation
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28. [85.032] Schedule
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29. [85.033] Directory or mandatory provisions
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30. [85.034] Definition, interpretation clause and General Clauses Act 1897
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31. [85.035] Dictionaries and textbooks
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32. [85.038] Doctrine of stare decisis
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33. [85.039] Meaning of caveat emptor
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34. [85.040] Consumer Consumer means any person who:
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35. [85.041] Manufacturer
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36. [85.042] Member
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37. [85.043] Appropriate laboratory
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38. [85.044] Branch office
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39. [85.045] Establishment
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40. [85.050] Unfair trade practice
Client/Matter: -None-
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41. [85.049] Trader
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42. [85.051] Restrictive trade practice
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43. [85.052] Aims and objectives of the Consumer Protection Act, 1986
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44. [85.053] Who are consumers
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45. [85.054] Who are not consumers
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46. [85.055] Meaning of consumer dispute
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47. [85.056] Definition of goods
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48. [85.057] Meaning of defect
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49. [85.058] Instances of complaints due to defect
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50. [85.059] Liability in case of defect
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51. [85.060] What amounts to unfair trade practices
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52. [85.061] Proof of unfair trade practice
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53. [85.062] What does not amount to unfair trade practice
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54. [85.063] Meaning of deficiency
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55. [85.064] Instances of deficiency
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56. [85.073] Postal and telegraph services
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57. [85.074] Railways
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58. [85.075] Loss of belongings
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59. [85.076] Failure to provide amenities
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60. [85.077] Death during rail travel
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61. [85.078] Contractor charging more than fixed by the railways
Client/Matter: -None-
62. [85.079] Jurisdiction of consumer forum
Client/Matter: -None-
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63. [85.080] Sick industrial units
Client/Matter: -None-
64. [85.081] Telephone bills
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65. [85.082] Consequential loss
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66. [85.084] Disconnection of telephone due to non-payment
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67. [85.085] When there is no deficiency in service
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68. [85.086] Services rendered by the medical practitioner
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69. [85.087] When a lawyer may be sued for professional negligence
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70. [85.088] Instances of deficiency in service
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71. [85.089] Instance of deficiency in service in air travel
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72. [85.090] Loss of or damage to baggage during flight
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73. [85.091] All risk insurance policy
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74. [85.092] Duties of persons seeking insurance policy
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75. [85.093] Commencement of insurance policy
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76. [85.098] When the repudiation will not be justified
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77. [85.099] When repudiation is justified
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78. [85.100] What amounts to violation of policy conditions
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79. [85.101] What amounts to breach of policy conditions
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80. [85.102] Settlement on basis of repair or total loss basis
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81. [85.103] Assessment of loss
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82. [85.104] When full and final settlement may be made
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83. [85.105] What amounts to delay in processing and settling the claim
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84. [85.110] Compensation in cases of total loss
Client/Matter: -None-
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85. [85.111] When insurance company is liable for the default of its agent
Client/Matter: -None-
86. [85.112] When the experts reports may be taken
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87. [85.113] Surveyor’s role and report
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88. [85.115] When the policy becomes inoperative
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89. [85.114] Suppression of material facts at the time of proposal
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90. [85.116] Third party liability
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91. [85.117] Ambiguity in the terms of the policy
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92. [85.118] When the matter is decided by the civil court
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93. [85.119] When the assignee or subrogee may maintain complaint
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94. [85.122] Whether denying cash credit facility is deficiency in service
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95. [85.123] Whether failure to pay fixed deposit amounts to deficiency in service
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96. [85.124] Negligence
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97. [85.125] When non-banking financial companies may issue notice
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98. [85.126] Liabilities of financial institutions in case of units
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[85.001] Consumer Protection in the age of Vedas and SmritisHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 1. INTRODUCTION > (1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW > A. Concept of Consumer Protection in Ancient India
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
1. INTRODUCTION
(1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW
A. Concept of Consumer Protection in Ancient India
[85.001] Consumer Protection in the age of Vedas and Smritis
Historically, consumer considerations date back to the Vedic age (5000 BC-2500 BC). The Vedic age in India was a glorious period of cultural evolution. Matters relating to civil rights and criminal offences are elaborately discussed in the Vedas. Four broad types of relevant criminal offences were prominent in the ancient period:
(1) Adulteration of food-stuff;
(2) Charging of excess prices;
(3) Fabrication of weights and measures;
(4) Sale of forbidden articles.
For all these offences statutory measures and punishments were recommended from time to time by leading texts of the time. Some of the prominent texts of the time were:
(a) Manusmriti (800 BC-600 BC);
(b) Kautilya’sArthashastra (400 BC-300 BC). Kautilya wrote the Arthashastra, a treatise on economics. His work is of great merit and originality and contains material of superb thought. Kautilya wrote the Arthashastra in an elegant style. He dealt with administrative law, civil law, constitutional law, criminal law and international law;
(c) Yajnavalikasmriti (300 AD-100 BC). It is very systematic and is considered to be an authority in the realm of Hindu Law as well as of vyavahara (behaviour) and personal rights of a man;
(d) Naradasmriti (100 AD-200 AD). It has clearly delineated the channels of civil and criminal law;
(e) Brihaspatismriti (200 AD-400 AD). It gives an elaborate description of civil and criminal law. It mentions the offences very clearly and also mentions the punishment and penalty to be imposed on the violators of the law;
(f) Katyayanasmriti (300AD-600AD). It deals extensively with the substantial and procedural law as well as with the rules of evidence. Various other matters concerning judicial trial are also mentioned in this1.
Page 2 of 2[85.001] Consumer Protection in the age of Vedas and Smritis
1 V Balakrishna Eradi, Consumer Protection Jurisprudence, “Introduction”, 2005, LexisNexis Butterworths, p 3.
End of Document
[85.002] In GeneralHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 1. INTRODUCTION > (1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW > A. Concept of Consumer Protection in Ancient India
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
1. INTRODUCTION
(1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW
A. Concept of Consumer Protection in Ancient India
[85.002] In General
In ancient India, the king fixed the equitable price for marketable goods and products by taking into consideration various factors such as the distance from where they came, the place of their consumption, the freight, their value at origin, the incidental expenses incurred by the producer or the trader and the profit margin. This was done once in five nights or a fortnight in public1. The sale or purchase had to be done only as per the king’s fixation and transgression attracted severe punishment2. During the Mauryan rule, Kautilya, their legendary minister, introduced several social control measures and one of them was the creation of an independent department for weights and measures headed by a superintendent3.
1 Aagamam nirgamam sthaanam tatha vridhichayavubou vicharya sarvapanyanam karayethkrayavikrayowu pancharatrae pancharatrae pachche pacheathava gathe kurvartha chaisham pratyakshamardhasamsthapanamnripaha: JR Gharpure, Manusmriti,1st Edn, 1920.
2 Raajani sthaapyathe yoardhaha prathyaham thena vikrayaha: JR Gharpare, Yajnavalkya Smriti with Mitakshara, 1914.
3 M Rama Jois, Legal and Constitutional History of India,1st Edn, p 267.
End of Document
[85.003] Where trader tampered with scales, measures and the likeHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 1. INTRODUCTION > (1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW > B. Offences in Ancient India
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
1. INTRODUCTION
(1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW
B. Offences in Ancient India
[85.003] Where trader tampered with scales, measures and the like
The person who tampered with scales, measures, royal mandate and standard coins, as also the person, who used them, were liable to be fined the highest amercement1. Where a trader in his dealings with customers, deceived them by means of balances, measures of corn and measures of capacity that were not genuine, or by any other method, he was fined the first amercement2. A person who abstracted one-eighth part by a false measure or balance, was compelled to pay a fine of 200 panas3 or in proportion to the loss caused on that basis4. Where goldsmiths did not use the balance authorised by the state goldsmith, punishment was a fine of 12 panas5. A person who dealt in false gold and also one who sold unclean meat were maimed and also made to pay the highest amercement6.
1 Tulaashaasanamaanaanaam kutakrinnanakasya cha aebishcha vyavahartha yaha sa dhapyo dhamamuthamam: Yaj II p 240.
2 Tulaamaanapratimaan pratirupakalachithyhi charannalachithyrvaapi prapnuyatpwevasahasam: Katyanana Smriti on Vyavahara (Law and Procedure) Sanskrit with English Translation by PV Kane, Bombay 1933, p 812.
3 Pana means silver coin.
4 Maanena tulaya vaapi yomashamashtamakam haraeth dandam sa dhapyo dwishatham vriddhan haanan cha kalpitham: Yaj p 244.
5 Tulaprathimaanabaandam paithavahasthathkreeniyulu anyata dwadhashapano dandaka: Kautilya p 97.
6 Kootaswarnavyavahaari vimamsasya cha vikrayi angaheenasthu karthavyo dhapyashothamasaahasam: Yaj II p 297.
End of Document
[85.004] Where the trader behaved dishonestlyHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 1. INTRODUCTION > (1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW > B. Offences in Ancient India
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
1. INTRODUCTION
(1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW
B. Offences in Ancient India
[85.004] Where the trader behaved dishonestly
A person who behaved dishonestly with his customers or cheated them concerning price was fined with the first or the middle amercement1. The merchants who subsisted by cheating in various ways during the course of selling different marketable commodities were open rogues2. They were caught by employing intelligent methods and punished commensurate with the gravity of the offence3.
1 Samairhi vishamam yasthu charaedhoui moolyathoapi vaa Samaapnu yaadhyadhamam poovvam naro madhyamaeva cha: Manu IX p 287.
2 Prakashavanchakasthaeshaam naanapanyopajeevinaha Pracchamnavan- chakaasthwethae yae sthaenaatavikaadhayaha: Manu IX p 257.
3 Jhaanvidhithuwaa sucharithaihi goodaisthath karma karibihi: Manu IX p 261; Charaishcha naekasmsthaanaihi prothsaadhya vashamaanayaeth.
End of Document
[85.005] Other instances of fraud by tradersHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 1. INTRODUCTION > (1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW > B. Offences in Ancient India
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
1. INTRODUCTION
(1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW
B. Offences in Ancient India
[85.005] Other instances of fraud by traders
The person adulterating marketable commodities was punished by a fine of the first amercement1. A person who adulterated medicines, oil, salt, perfumes, grain, sugar and the like and kept them for sale was fined 16 panas2.
When earth, hide, gem, yarn, wood, fark or cloth was made to appear as, or misrepresented to be of good quality, when it was not of good quality, the fine was eight times the amount for which it was sold3. A person who concealed the blemish of an article which he was selling, or mixed bad and good articles together or sold old articles, after repairing them, as new ones was compelled to pay the purchaser double the value, and also fine of an equal amount to the king4.
1 Adhooshithanaam dhravyaanaam dhooshanae maedhanae tatha Maninaapavalgae cher dandaka prathamasahasala: Manu IX p 286.
2 Maeshajasnehalabanagandhadha nyagudadhishu panyaeshu prachipan keenam panaan dhaapyasthu shodasha: Yaj II p 245.
3 Mricharma manisutrayaha kaashtavalkalavaasasaam ajaathon jaathikaranae vikralyashta gunodhamaha.
4 Prachamnadoshavyamishram punaha samskrithavikrayi panyae taddvigunam daapyo vanigdhandam cha tatsamam.
End of Document
[85.006] Builder’s liabilityHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 1. INTRODUCTION > (1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW > C. Instances of Liabilities
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
1. INTRODUCTION
(1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW
C. Instances of Liabilities
[85.006] Builder’s liability
As regards builders, where damage was caused due to improper construction of building or carts and the like, or by an unstable beam, the person responsible was liable to meet the cost of loss or medical treatment1.
All physicians who treated their patients wrongly were liable to pay fine2.
1 Dwibalam vaeshma shakatamanuththabdha moorthasthambam shastraman- apaashrayam aprathichamnam shr abram koopam kootavapaatham vaakrithva himsaayaam dhandapaarushyam vidhyath: Kautilya p 265; Justice Rama Jois p 282.
2 Chikithsakaanam sarvaeshaam mityaapracharathaam dhamaha: Manu IX p 284; Justice Rama Jois p 397.
End of Document
[85.007] Liability of masters and employersHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 1. INTRODUCTION > (1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW > C. Instances of Liabilities
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
1. INTRODUCTION
(1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW
C. Instances of Liabilities
[85.007] Liability of masters and employers
Where the cart turned off the road owing to the driver’s want of skill in driving, the owner was liable to be fined two hundred panas if damage was done1. However, where the driver was skilful, but negligent, he alone was fined2. The master was liable to pay damages to third parties for the loss or injury caused to them by his servant3. Though they were termed as fines since they were payable to the affected parties, they were only in the nature of damages4.
1 Yatraapavarthathal yugyam vaigunyaathpraajakasya thu tatra swami bavaed- handyo himsaayaam dwishatham dhamam: Manu VIII p 293.
2 Praajakashchaethbavaedhaapthaha prajako dhandamarhathi Yugyasthaahal praajakaenaapthae sarvae dhandyaha shatham shatham: Manu VIII p 294.
3 See note 2 above.
4 See M Rama Jois, Legal and Constitutional History of India p 281.
End of Document
[85.008] Liability of carrierHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 1. INTRODUCTION > (1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW > C. Instances of Liabilities
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
1. INTRODUCTION
(1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW
C. Instances of Liabilities
[85.008] Liability of carrier
A carrier who agreed to transport goods by carriage for consideration and agreed to deliver the same at a particular place within a specified time but failed to carry out the same, was not entitled to charges1. Where the consignment was damaged due to the carrier’s fault he was answerable for the loss except when the damage was due to the act of fate/God or the sovereign2.
These rules are comparable to the liabilities of a common carrier under the present day laws3.
1 Chakravriddhim samaaroodoe deshakaala vyavisthithaha athikraaman desha- kaalon na thafala avaapnuyaath: Manu VIII p 156.
2 M Rama Jois, Legal and Constitutional History of India p 279.
3 See note 2 above.
End of Document
[85.009] Liability of debtorsHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 1. INTRODUCTION > (1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW > C. Instances of Liabilities
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
1. INTRODUCTION
(1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW
C. Instances of Liabilities
[85.009] Liability of debtors
In ancient India, the king had frowned upon resort to forcible methods by creditors against debtors, who claimed investigation into their liability1. It was the duty of the bailee to allow redemption on repayment of loan2.
Equally when the pledger repaid the loan and asked for the return of the pledged property, the pledgee had to restore the pledged property, otherwise he could be liable to punishment3.
1 Peedayaethu dhani yatra rinikam nyayavadhinam Jasmaathdharthatsa heeyaetha tatsamam chaapruyaadhamam: Katyayanap 589; M Rama Jois, Legal and Constitutional History of India, 1st Edn, p 102.
2 Yaj II p62; M Rama Jois, Legal and Constitutional History of India, 1st Edn, p 124.
3 Dhanam moolikritham dhatva yadhaadhim praarthayaethdhruni Jadhaiva tasya mokthavyasththuvanyatha doshabaagdhani: Brihaspati pp 323-322; Justice Rama Jois p 128.
End of Document
[85.010] SaleHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 1. INTRODUCTION > (1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW > C. Instances of Liabilities
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
1. INTRODUCTION
(1) ORIGIN AND HISTORY OF CONSUMER PROTECTION LAW
C. Instances of Liabilities
[85.010] Sale
Where any person sold goods already sold to another or sold defective goods representing them as sound ones, he was liable to be punished by the imposition of a fine to the extent of double the price of the goods1. Wherever a seller, having shown an article free from defects as the one to be sold, delivered after sale a different article which was defective, he was made to pay double the price to the buyer and also an amount equal to that as fine to the king2.
But the ancient law also recognized the modern rule of caveat emptor that the purchaser who first carefully examined the property and after approval of the transaction purchased it, shall not be permitted to rescind.3
1 Anyahasthe cha vikreetham dushtam vaa adushtavadhyadhi vikreeneethae damastatra moolyaathu dviguno bhavaeth: Yaj II p 257; Justice Rama Jois p 149.
2 Nirdos hamdharshayitva tu yaha sadosham prayaehathi moolyam thdhdvigunam dhaapyo vinayam taavadeva cha: Katyayanap 689; Justice M Rama Jois, Legal and Constitutional History of India p 151.
3 Justice M. Rama Jois p 150.
End of Document
[85.012] Guidelines for consumer protectionHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 2. GENERAL BACKGROUND > (1) CONSUMER PROTECTION LAWS > A. History of Legislation > (i) United Nations
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
2. GENERAL BACKGROUND
(1) CONSUMER PROTECTION LAWS
A. History of Legislation
(i) United Nations
[85.012] Guidelines for consumer protection
In 1983, the Secretary General of the United Nations submitted draft guidelines for consumer protection to the United Nations Economic and Social Council Organization (UNESCO)1. Upon extensive discussions and negotiations among governments on the scope and content thereof and taking into account the interests and needs of consumers in all countries, particularly those in developing countries, recognising that consumers often face imbalances in economic terms, educational level and bargaining power, and bearing in mind that consumer must have the right of access to non-hazardous products, as well as importance of promoting just, equitable and sustainable economic and social development, the General Assembly of the United Nations adopted the guidelines for consumer protection which inter alia provide for the following objectives:
(1) to assist countries in achieving or maintaining adequate protection for their population as consumers;
(2) to facilitate production and distribution patterns responsive to the needs and desires of consumers;
(3) to encourage high levels of ethical conduct for those engaged in the production and distribution of goods and services to consumers;
(4) to assist countries in curbing abusive business practices by all enterprises at the national and international levels which adversely affect consumers;
(5) to facilitate the development of independent consumer groups;
(6) to further international co-operation in the field of consumer protection.
(7) to encourage the development of market conditions which provide consumers with greater choice at lower prices2.
Page 2 of 2[85.012] Guidelines for consumer protection
1 United Nations, General Assembly-Consumer Protection Resolution No 39/248 dated 9-4-1985, Department of International Economic and Social Affairs, New York, 1986.
In March 1962, US President, John F Kennedy, in his message to Congress outlined the above as a Consumer’s Bill of Rights (the right to safety; (2) the right to be informed; (3) the right to choose; and (4) the right to be heard, are regarded as the Magna Carta of Consumer’s Rights).
2 United Nations, General Assembly-Consumer Protection Resolution No 39/248 dated 9-4-1985, Department of International Economic and Social Affairs, New York, 1986; State of Karnataka v Vishwabharathi House Building Co-op Society, AIR 2003 SC 1043 [LNIND 2003 SC 60]: (2003) 2 SCC 412 [LNIND 2003 SC 60] : (2003) 113 Com Cas 536.
End of Document
[85.013] Consumer protection laws in different countriesHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 2. GENERAL BACKGROUND > (1) CONSUMER PROTECTION LAWS > A. History of Legislation > (i) United Nations
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
2. GENERAL BACKGROUND
(1) CONSUMER PROTECTION LAWS
A. History of Legislation
(i) United Nations
[85.013] Consumer protection laws in different countries
The United Nations passed a resolution in April 1985 indicating certain guidelines under which governments may make law for better protection of the interests of the consumers. Such laws were more necessary in the developing countries to protect the consumers from hazards to their health and safety and to make available to them speedier and cheaper redress. Consumerism has been a movement in which the trader and the consumer find each other as adversaries. In the last two decades in many developed and developing countries, powerful consumer organisations have come into existence and such organisations have been instrumental in dealing with the consumer protection laws and in the expansion of the horizon of such laws1.
1 Spring Meadows Hospital v Harjot Ahluwalia, AIR 1988 SC 1801 : (1998) 4 SCC 39 [LNIND 1998 SC 357] : (1998) 92 Com Cas 797.
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[85.015] Legislation protecting consumer interestsHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 3. CONSUMER PROTECTION > (1) LAWS DEALING WITH CONSUMER COMPLAINTS > A. Prior to the Consumer Protection Act, 1986
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[85] CONSUMER PROTECTION
3. CONSUMER PROTECTION
(1) LAWS DEALING WITH CONSUMER COMPLAINTS
A. Prior to the Consumer Protection Act, 1986
[85.015] Legislation protecting consumer interests
India has both pre-independence and post-independence laws enacted regulating and controlling unfair trade practices and protecting the interests of the consumer. The objects to be achieved under the laws were standardisation, grading, packaging and branding, prevention of food adulteration, short weights and measures, hoarding, profiteering, and the like1. However, the remedy under ordinary law, for various reasons, has become illusory2.
1 For instance, see the Indian Contract Act, 1872; Sale of Goods Act, 1930; Agricultural Produce (Grading and Marketing) Act, 1937; Drugs and Cosmetics Act, 1940; Drugs (Control) Act, 1950; Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954; Prevention of Food Adulteration Act, 1954; Essential Commodities Act, 1955; Standards of Weights and Measures Act, 1956; Trade and Merchandise Marks Act, 1958; Essential Services Maintenance Act, 1968; the Monopolies and Restrictive Trade Practices Act, 1969; Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980; Bureau of Indian Standards Act, 1986.
2 Lucknow Development Authority v MK Gupta, AIR 1994 SC 787 [LNIND 1993 SC 946]: (1994) 1 SCC 243 [LNIND 1993 SC 946] : (1994) 80 Comp Cas 714 : (1994) 1 CPR 569 : (1994) 13 CLA 20 : (1994) 1 CLC 1.
End of Document
[85.014] Enforcement of the Consumer Protection Act 1986 as amended by Act 62/2002 w.e.f. 15 March 2003
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 2. GENERAL BACKGROUND > (1) CONSUMER PROTECTION LAWS > A. History of Legislation > (ii) Law in India
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
2. GENERAL BACKGROUND
(1) CONSUMER PROTECTION LAWS
A. History of Legislation
(ii) Law in India
[85.014] Enforcement of the Consumer Protection Act 1986 as amended by Act 62/2002 w.e.f. 15 March 20031The Consumer Protection Act, 1986 was enacted as a result of widespread consumer protection movement. On the basis of the report of the secretary general on consumer protection dated 27 May 1983, the United Nations Economic and Social Council recommended that the world’s governments develop, strengthen and implement a coherent consumer protection policy taking into consideration the guidelines set out therein. The governments were to further provide adequate infrastructure including the bodies as well as financial facilities to develop, implement and monitor consumer protection policies. The introduction of new products in the developing countries was to be assessed in relation to the local conditions having regard to the existing production, distribution and consumption patterns of the country or region concerned. With reference to the consumer movement and the international obligations for protection of the rights of the consumer, provision has been made in the Consumer Protection Act, 1986 with the object of interpreting the relevant law in a rational manner and for achieving the objective set forth in the aforesaid enactment. A rational approach and not a technical approach is the mandate of law’2. Technicalities should be eschewed and grievances of consumers deserve to be redressed expeditiously3.
1 The Consumer Protection (amendment) Act, 2002.
2 India Photographic Co Ltd v HD Shourie, AIR 1999 SC 2453 [LNIND 1999 SC 639]: (1999) 6 SCC 428 [LNIND 1999 SC 639].
There were other important developments such as, (a) the 1981 World Health Organization (WHO) International Code of Marketing of breast milk substitute; (b) the 1985 Food and Agriculture Organization (FAO) International Code of
Page 2 of 2[85.014] Enforcement of the Consumer Protection Act 1986 as amended by Act 62/2002 w.e.f. 15 March 2003
Conduct on the distribution and use of pesticides; (c) the work in the area of food of the FAO/WHO Codex Alimentarius Commission; and (d) the United Nations General Assembly Resolution of 17 December 1982 on protection against products whose consumption and use have been banned, withdrawn, severely restricted or not approved by governments.
3 Ludhiana Improvement Trust v Shakti Co-op House Building Society Ltd, (2009) 12 SCS 369 : 2009 (5) Scale 373 : 2009(5) JT 425 : II 2009 CPJ 40 SC.
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[85.016] IntroductionHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 3. CONSUMER PROTECTION > (1) LAWS DEALING WITH CONSUMER COMPLAINTS > B. After the Consumer Protection Act, 1986
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(1) LAWS DEALING WITH CONSUMER COMPLAINTS
B. After the Consumer Protection Act, 1986
[85.016] Introduction
The Consumer Protection Act, 1986 came to be passed in the year 1986, to provide for the better protection of the interests of the consumer1. During the last few years, preceding the enforcement of the aforesaid enactment, there was in this country a marked awareness among the consumer of goods that they were not getting their money’s worth and were being exploited by both traders and manufacturers of consumer goods. Therefore, the need for consumer redressal fora was increasingly felt2 and for that purpose, to provide for the better protection of the interests of the consumer, provision for the establishment of consumer councils and other authorities for the settlement of consumers’ disputes and for matters connected therewith was sought to be made3.
The objects of the Consumer Protection Act, 19864 are sought to be promoted and protected by the consumer protection council to be established at the central and state levels5. The importance of the Consumer Protection Act, 1986 lies in promoting welfare of the society by enabling the consumer to participate in the market economy. The Consumer Protection Act, 1986 thus aims to protect the economic interest of a consumer as understood in the commercial sense, as a purchaser of goods and in the larger sense, user of services6. It is a milestone in the history of socio-economic legislation and is directed towards achieving public benefit7. The Consumer Protection Act, 1986 is one of the benevolent pieces of legislation intended to protect a large body of consumers from exploitation. The 1986 Act is a complete code unto itself.8. The adjudicatory fora have been constituted to resolve complaints of consumers9
1 See the Consumer Protection Act, 1986 Preamble.
2 Common Cause, A Registered Society v UOI, (1993) 1 CPJ (SC) 1.
3 See the Consumer Protection Act, 1986 Preamble.
4 See the Consumer Protection Act, 1986 Statement of Objects and Reasons.
5 See note 3 above.
Page 2 of 2[85.016] Introduction
6 Lucknow Development Authority v MK Gupta, AIR 1994 SC 787 [LNIND 1993 SC 946]: (1994) 1 SCC 243 [LNIND 1993 SC 946] : (1994), 80 Comp Cases 714 : (1994) 1 CPR 569 : (1994) 13 CLA 20 : (1994) 1 CLC 1 (it attempts to remove the helplessness of a consumer which he faces against powerful businesses, described as “a network of rackets” or a society in which producers have secured power to rob the rest and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous considerations, leaving the common man helpless bewildered and shocked).
7 Charan Singh v Healing Touch Hospital, AIR 2000 SC 3138 [LNIND 2000 SC 2115]: (2000) 7 SCC 668 [LNIND 2000 SC 2115].
8 On Prakash Saini v DCM Ltd, (2010) 11 SCC 622 [LNIND 2010 SC 548] : AIR 2010 SC 2608 [LNIND 2010 SC 548]: 2010 (6) JT 514 : 2010 (6) Scale 294 [LNIND 2010 SC 548].
9 State of Karnataka v Vishwabharathi House Building Co-op Society, (2003) 2 SCC 412 [LNIND 2003 SC 60] : AIR 2003 SC 1043 [LNIND 2003 SC 60]; State of Uttar Pradesh v All Uttar Pradesh Consumer Protection Bar Association, AIR 2016 SC 5368 [LNIND 2016 SC 558]: 2016 (11) JT 276 : 2016 (12) Scale 182; N Kannadasan v Ajoy Khose, (2009) 7 SCC1 : 2009 (7) JT 601 : 2009 (8) Scale 351 [LNIND 2009 SC 1178].
End of Document
[85.017] Objects of the Consumer Protection Act 1986Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 3. CONSUMER PROTECTION > (1) LAWS DEALING WITH CONSUMER COMPLAINTS > B. After the Consumer Protection Act, 1986
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(1) LAWS DEALING WITH CONSUMER COMPLAINTS
B. After the Consumer Protection Act, 1986
[85.017] Objects of the Consumer Protection Act 1986
The Consumer Protection Act, 1986 seeks inter alia to promote the rights of consumers1 such as:
(1) the rights to be protected against marketing of goods which are hazardous to life and property;
(2) the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;
(3) the right to be assured, wherever possible, access to an array of goods at competitive prices;
(4) the right to be heard and to be assured that consumer interests will receive the consideration at appropriate forums;
(5) the right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers; and
(6) the right to consumer education.2
If none of these is alleged and made out, the complaint will have to be rejected3.
The Act seeks to cover in its net, services offered or rendered for a consideration4.
1 Statement of Objects and Reasons Gazette of India (Extraordinary), Pt II, section 2, 1986.
2 Jagmittar Sain Bhagat v Director, Health Services, Haryana, (2013) 10 SCC 136 [LNINDORD 2013 SC 35442] : AIR 2013 SC 3060 [LNINDORD 2013 SC 35442]: 2013 (9) Scale 103 [LNIND 2013 SC 657].
3 Bihar School Examination Board v Suresh Prasad Sinha, (2009)8 SCC 483 [LNIND 2009 SC 1773] : AIR 2010 SC 93 [LNIND 2009 SC 1773]: 2009 (12) Scale 228 [LNIND 2009 SC 1773] : 2009 (11) JT 541 : IV 2009 CPJ 34 (SC).
4 Secretary, Bhubaneswar Development Authority v Susanta Kumar Mishra, (2009) 4 SCC 684 [LNIND 2009 SC 213] : 2009 (3) Scale 786 [LNIND 2009 SC 213] : 2009 (5) JT 189.
Page 2 of 2[85.017] Objects of the Consumer Protection Act 1986
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[85.018] Mimansa rules of interpretationHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 4. INTERPRETATION OF STATUTES > (1) INTERPRETATION IN ANCIENT INDIA
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[85] CONSUMER PROTECTION
4. INTERPRETATION OF STATUTES
(1) INTERPRETATION IN ANCIENT INDIA
[85.018] Mimansa rules of interpretation
One of the rules of interpretation to be used in ancient Indian was the Mimansa rules of interpretation1. The word “Mimansa” means enquiry or investigation2. The main obligatory rule under the Mimansa Principles is called a vidhi, or nishedha, where it is in negative form3. A non-obligatory statement is known as an arthavada4. The six axioms5 of interpretation under Mimansa are:
(1) the sarthakyata axiom, which means that every word and sentence must have some meaning;
(2) the laghava axiom (gauravah doshah), which states that the construction which makes the meaning simpler and shorter is to be preferred;
(3) the arthaikatva axiom, which states that a double meaning must not be attached to a word or sentence occurring at one and the same place. Such a double meaning is known as vakyabheda, and is a fault (dosh);
(4) the gunapradhan axiom, which states that if a word or sentence purporting to express a subordinate idea clashes with the principal idea the former must be adjusted to the latter, or must be disregarded altogether;
(5) the samanjasya axiom which states that all attempts must be made at reconciliation of apparently conflicting texts. Jimutvahana has utilised this principle for reconciling conflicting texts of Manu and Yajnavalkya on the right of succession6;
(6) the vikalpa axiom, which states that if there is a real and irreconcilable contradiction between two legal rules, having equal force, the rule more in accordance with equity and usage may be adopted at one’s option. It must be clarified here that where one of the rules is a higher legal norm as compared to the other, for instance, a shruti is a higher norm than a smriti, and then by the badha principle the former will prevail.
Apart from the above mentioned axioms of interpretation there are the four well-known general principles of interpretation in Mimansa, viz:
(a) the Shruti principle, or the literal rule. This is illustrated by the well-known garhapatya maxim. There is the vedic verse “Aindra garhapatyam upatishthate” (with the Indra verse one should worship Garhapatya). Now this vidhi may have several meanings; eg, (1) One must worship garhapatya, the household fire, with a verse addressed to Indra (2) One should worship both Indra as well as garhapatya, (3) One must worship either of the two. The correct interpretation, according to the shruti principle, is the first interpretation since the word “garhapatya” is in the objective case 17;
Page 2 of 2[85.018] Mimansa rules of interpretation
(b) the linga principle, also called lakshana artha, or the suggestive power of words or expressions. This principle may be illustrated by the decision of the Supreme Court in UP Bhoodan Yagna Samiti v Brij Kishore8, where the words “landless persons” were held to refer to land-less peasants only and not to landless businessmen. In the Mimansa, it is illustrated by the “barhi nyaya”9;
(c) the vakya principle, or syntactical arrangement. Mimansaks illustrate it by the “Aruni nyaya”;
(d) Prakarna, which permits construction by referring to some other text in order to make the meaning clear.
1 KL Sarkar, Tagore Law Lectures, 1905, ed by J Markandey Katju, 2nd Edn 2003, p 8.
2 See note 1 above p 1.
3 See note 1 above p 7.
4 See note 1 above p 7.
5 See note 1 above p 8.
6 See KL Sarkar, “Mimamsa Principles, Second Lecture”, Tagore Law Lectures, 1905, ed by J Markandey Katju, 2nd Edn 2003, p 76.
7 See note 6 above.
8 Uttar Pradesh Bhoodan Yagna Samiti, Uttar Pradesh v Braj Kishore, AIR 1988 SC 2239 [LNIND 1988 SC 440].
9 See note 6 above.
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[85.019] PreliminaryHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 4. INTERPRETATION OF STATUTES > (2) MODERN RULES OF INTERPRETATION
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4. INTERPRETATION OF STATUTES
(2) MODERN RULES OF INTERPRETATION
[85.019] Preliminary
A statute1 is the authentic expression of the legislative will2. The function of the court is to interpret that document “according to the intent of them that made”3. Where the language is clear and explicit, the court must give effect to it4. Any implication which is inconsistent with the words expressly used has to be avoided5.
1 As to statutes see [275] STATUTES.
2 Maxwell, Interpretation of Statutes, 12th Edn, p 1.
3 Maxwell, Interpretation of Statutes, 12th Edn, p 1 quoting Coke, 4 Institutes 330.
4 See note 1 above.
5 Maxwell, the Interpretation of Statutes, 12th Edn, p 1 quoting Lord Green MR in Re, A Debtor (No 335 of 1947),, [1948] 2 All ER 533 at 536.
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[85.020] General rulesHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 4. INTERPRETATION OF STATUTES > (2) MODERN RULES OF INTERPRETATION
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(2) MODERN RULES OF INTERPRETATION
[85.020] General rules
As the words and expressions used in a statute often take their colour and meaning from the context in which they appear in the statute as a whole1, the statute has to be read as a whole as to what precedes and what succeeds2, to extract its meaning and intendment correctly3. To ascertain the legislative intent, all the constituent parts of a statute are to be taken not in an isolated or detached manner dissociated from the context but are to be read together, and each word, phrase or sentence is to be considered in the light of the general purpose and object of the enactment itself4. An interpretation in consonance with the purposes of the enactment and what logically follows from the terms used has to be given. Further absurd results have to be avoided5. Where a particular interpretation will ensure the validity of a law, that interpretation is to be preferred6.
When the words in the statute are reasonably capable of more than one interpretation, the object and purpose of the statute, a general conspectus of its provisions and the context in which they occur might induce a court to adopt a more liberal or a more strict view of the provisions as the case may be7. In the construction of statutes, their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical meaning8, or there would be some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency but no further9. Where, in any legislation, the general object of which is to benefit a particular class of persons, in which any provision is ambiguous that is capable of two meanings, one of which would preserve the benefit and another which would take it away, the meaning which preserves it must be adopted10.
The Act being a benevolent piece of legislation, the provisions should receive a liberal construction but the power of the fora being quasi-judicial all the relevant factors and materials should be produced by both parties11.
1 Pandit Ram Narain v State of Uttar Pradesh, AIR 1957 SC 18 [LNIND 1956 SC 65]: [1956] SCR 664 [LNIND 1956 SC 65]; Mangoo Singh v Election Tribunal, Bareilly, AIR 1957 SC 871 [LNIND 1957 SC 89]: [1958] SCR 418 [LNIND 1957 SC 89]; Alamgir v State of Bihar, AIR 1959 SC 436 [LNIND 1958 SC 145]: [1959] 51 SCR 464 (Supp); Supdnt and Remembrancer of Legal Affairs West Bengal v Abani Maity, AIR 1979 SC 1029 [LNIND 1979 SC 179]: (1979) 4 SCC 85 [LNIND 1979 SC 179] : [1979] 3 SCR 472 [LNIND 1979 SC 179].
Page 2 of 2[85.020] General rules
2 Tulasamma v Sesha Reddy, AIR 1977 SC 1944 [LNIND 1977 SC 136]: (1977) 3 SCC 99 [LNIND 1977 SC 136] : [1977] 3 SCR 261 [LNIND 1977 SC 136]; Queen v Eduljee Byramjee, (1846) 3 Moo Ind App 468 : 5 Moo PC 276.
3 State of West Bengal v UOI, AIR 1963 SC 1241 [LNIND 1962 SC 438]: [1964] 1 SCR 371 [LNIND 1962 SC 438]; Vijayawada Municipal Council v APSEB, AIR 1977 SC 86 [LNIND 1976 SC 383]: (1976) 4 SCC 548 [LNIND 1976 SC 383] : [1977] 1 SCR 846 [LNIND 1976 SC 383]; Vacuum Oil Co v Secretary of State, AIR 1932 PC 168 : ILR 56 Bom 313 : 59 IA 258; Tahsildar Singh v State of Uttar Pradesh, AIR 1959 SC 1012 [LNIND 1959 SC 96]: [1959] 2 SCR 875 (Supp).
4 Darshan Singh v State of Punjab, AIR 1953 SC 83 [LNIND 1952 SC 83]: [1953] SCR 319; Aswini Kumar v Arvinda Bose, AIR 1952 SC 369 [LNIND 1952 SC 60]: [1953] 4 SCR 1; Rayala Corp Pvt Ltd v Director of Enforcement, (1969) 2 SCC 412 [LNIND 1969 SC 219] : [1970] 1 SCR 639 [LNIND 1969 SC 219]; Organo Chemical Industries v UOI, AIR 1979 SC 1803 [LNIND 1979 SC 288]: (1979) 4 SCC 573 [LNIND 1979 SC 288] : [1980] 1 SCR 61 [LNIND 1979 SC 288].
5 Commr of Wealth Tax v Officer-in-charge (Court of Wards), AIR 1977 SC 113 [LNIND 1976 SC 256]: (1976) 3 SCC 864 [LNIND 1976 SC 256] : [1977] 1 SCR 146 [LNIND 1976 SC 256].
6 Rayala Corp v Director of Enforcement, (1969) 2 SCC 412 [LNIND 1969 SC 219] : [1970] 1 SCR 639 [LNIND 1969 SC 219].
7 State of Rajasthan v Leela Jain, AIR 1965 SC 1296 [LNIND 1964 SC 228]: [1965] 1 SCR 276 [LNIND 1964 SC 228] : (1966) 1 SCJ 37 [LNIND 1964 SC 228].
8 Victoria City v Bishop of Vancouver Island, AIR 1921 PC 240.
9 Jugalkishore v Raw Cotton Co Ltd, AIR 1955 SC 376 [LNIND 1955 SC 21]: [1955] 1 SCR 1369 [LNIND 1955 SC 21] : (1955) SCJ 371 [LNIND 1955 SC 21]; Kanailal v Paramnidhi, AIR 1957 SC 907 [LNIND 1957 SC 83]: [1958] SCR 360 [LNIND 1957 SC 83] : (1958) SCJ 99 [LNIND 1957 SC 83]; SA Venkatraman v State, AIR 1958 SC 107 [LNIND 1957 SC 134]: [1958] SCR 1037; Mahadeolal v Administrator General of West Bengal, AIR 1960 SC 936 [LNIND 1960 SC 128]: [1960] 3 SCR 578 [LNIND 1960 SC 128] : (1961) 1 SCJ 15; Babu Manmohan Das Shah v Bishun Das, AIR 1967 SC 643 [LNIND 1966 SC 252]: [1967] 1 SCR 836 [LNIND 1966 SC 252].
10 Mahadeolal v Administrator General of West Bengal, AIR 1960 SC 936 [LNIND 1960 SC 128]: [1960] 3 SCR 578 [LNIND 1960 SC 128] : (1961) 1 SCJ 15.
11 Ludhiana Improvement Trust v Shakti Co-op House Building Society Ltd, (2009) 12 SCC 369 [LNIND 2009 SC 813] : 2009(5) Scale 373 [LNIND 2009 SC 813] : 2009 (5) JT 425 : II 2009 CPJ 40 (SC).
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[85.021] Statement of objects and reasons of a statuteHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 4. INTERPRETATION OF STATUTES > (3) INTERNAL AIDS TO INTERPRETATION OF STATUTES > A. Interpretation of Various Sections of a Statute
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(3) INTERNAL AIDS TO INTERPRETATION OF STATUTES
A. Interpretation of Various Sections of a Statute
[85.021] Statement of objects and reasons of a statute
The statement of objects and reasons may be used for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation1; the reasonableness of a classification made in an enactment to see if it infringed or was contrary to the constitution2 and not for determining the true meaning and effect of the substantive provisions of the statute3. Even an affidavit on behalf of the state/public body may be relied on to understand the circumstances which prevailed at the time when the law under consideration had been passed and which necessitated the passing of that law4 or the true object of enacting the provision5.
Where the words used in a statute are clear and unambiguous then the statute itself declares the intention of the legislature and in such a case it would not be permissible for a court to interpret the statute by examining the objects and reasons for the statute in question6. It is only when such words are capable of two constructions that the question of giving effect to the policy or object of the enactment may legitimately arise7. The court must, when it seeks the legislative intent, construe all the constituent parts of the statute together and seek to ascertain the legislative intention from the whole enactment, considering every provision thereof in the light of the general purpose and object of the legislation itself, and endeavouring to make every part effective, harmonious and sensible8.
1 State of West Bengal v UOI, AIR 1963 SC 1241 [LNIND 1962 SC 438]: [1964] 1 SCR 371 [LNIND 1962 SC 438]; Shashikant Laxman Kale v UOI, AIR 1990 SC 2114 [LNIND 1990 SC 362]: (1990) 4 SCC 366 [LNIND 1990 SC 362]; Newspapers Ltd v State Industrial Tribunal, AIR 1957 SC 532 [LNIND 1957 SC 28]: [1957] 1 SCR 754 [LNIND 1957 SC 28]; RMD Chamarbaugwalla v UOI, AIR 1957 SC 628 [LNIND 1957 SC 37]: [1957] SCR 930; CIT v Sodra Devi, AIR 1957 SC 832 [LNIND 1957 SC 59]: [1958] 1SCR 1; KK Kochunni v States of Madras & Kerala, AIR 1960 SC 1080 [LNIND 1960 SC 436]: [1960] 3 SCR 887 [LNIND 1960 SC 436]; SC Prashar, ITO v Vasantsen Dwarkadas, AIR 1963 SC 1356 [LNIND 1962 SC 424]: [1964] 1 SCR 29 [LNIND 1962 SC 424]; Workmen Firestone Tyre & Rubber Co v Management, (1973) 1 SCC 813 [LNIND 1973 SC 430] : (1973) SCC (L&S) 341; Narain Khamman v Parduman Kumar Jain, (1985) 1 SCC 1 [LNIND 1984 SC 291]; State of Himachal Pradesh v Kailash Chand Mahajan, (1992) Supp 2 SCC 351; Kumar Jagdish Chandra Sinha v Eileen K Patricia D’Rozarie, AIR 1995 SC 575 [LNINDORD 1994 SC 10]: (1995)
Page 2 of 2[85.021] Statement of objects and reasons of a statute
1 SCC 164; Babua Ram v State of Uttar Pradesh, (1995) 2 SCC 689 : (1995) 1 SCJ 573; Uttam Singh Duggal & Co Ltd v United Bank of India, AIR 2000 SC 2740 [LNIND 2000 SC 1067]: (2000) 7 SCC 120 [LNIND 2000 SC 1067].
2 A Thangal Kunju Musaliar v M Venkatachalam Potti, AIR 1956 SC 246 [LNIND 1955 SC 116]: [1955] 2 SCR 1196 [LNIND 1955 SC 116].
3 See note 1 above.
4 See note 2 above.
5 Pannalal Binjraj v UOI, AIR 1957 SC 397 [LNIND 1956 SC 117]: [1957] SCR 233 [LNIND 1956 SC 117].
6 SS Bola v BD Sardha, AIR 1997 SC 3126 [LNINDORD 1997 SC 29].
7 Kanai Lal Sur v Paramnidhi Sadhukhan, AIR 1957 SC 907 [LNIND 1957 SC 83]: [1958] 1 SCR 360.
8 Crawford’s Statutory Construction, 1940, Reprint 1989, p 261, section 165.
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[85.025] Marginal notesHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 4. INTERPRETATION OF STATUTES > (3) INTERNAL AIDS TO INTERPRETATION OF STATUTES > A. Interpretation of Various Sections of a Statute
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(3) INTERNAL AIDS TO INTERPRETATION OF STATUTES
A. Interpretation of Various Sections of a Statute
[85.025] Marginal notes
The marginal note to a provision forms no part of the statute1 itself and so must not be considered2 and may not be referred to for the purpose of construing the enactment3, unless these are words in the particular statute under consideration indicating that marginal notes are part of the enactment4.
Sidenotes may not be said to be enacted in the same sense as the long title or any part of the body of the enactment5. The marginal note may, however, be relied upon as indicating the drift of the provision to show what the said provision was dealing with6.
Originally under English Law, punctuation was disregarded in the construction of statutes7. ‘In an Act of Parliament there are no such things as brackets any more than there are such things as stops8.”as held by the Queens Bench. The irrelevance of punctuation has two consequences, first, a provision in a statute may be read as though the punctuation which appears on the face of the enactment were omitted; secondly, where it is necessary to give a provision a particular construction which is at variance with the way in which the provision is punctuated, it may be read as though there were in fact punctuation where none appears on the face of the enactment9. It is an error to rely on punctuation in construing Acts of the legislature10. A court of law is found to read the article without commas inserted in the print, so that the meaning is reasonably clear11. However, when a statute is carefully punctuated and there is no doubt about its meaning, weight must undoubtedly be given to the punctuation12. In Indian Law, the position is different and punctuation has often been taken into consideration13.
1 As to statute see [85.021] and the following; see also [275] STATUTES.
2 Sutton v Sutton, (1883) 22 Ch D 511.
3 Thakurain Balraj Kumwar v Rao Jagpatpal Singh, (1904) ILR 26 All 393(PC) : 31 IA 132; Claydon v Green, LR 3 CP 511 at 522; Broom’s Legal Maxims, 10th Edn, Reprint, p 385; Western India Theatres Ltd v Municipal Corp Poona, AIR
Page 2 of 2[85.025] Marginal notes
1959 SC 586 [LNIND 1958 SC 204]: [1959] Supp 2 SCR 71; CIT, Bombay v Ahmedbhai Umarbhai & Co, AIR 1950 SC 134 [LNIND 1950 SC 16]: [1950] 1SCR 335.
4 Re Woking UC, [1914] 1 Ch 300 at 322; Broom’s Legal Maxims, 10th Edn Reprint, p 385.
5 Maxwell, Interpretation of Statutes, 12th Edn, p 10.
6 Tara Prasad Singh v UOI, (1980) 4 SCC 179 [LNIND 1980 SC 234]; KP Varghese v ITO, (1981) 4 SCC 173 [LNIND 1981 SC 373]; SP Gupta v UOI, (1981) SCC 87 (Supp); HM Kamaluddin Ansari & Co v UOI, (1983) 4 SCC 417 [LNIND 1983 SC 464]; Shree Sajjan Mills Ltd v CIT, (1985) 4 SCC 590 [LNIND 1985 SC 325]; Kalawatibai v Soiryabai, (1991) 3 SCC 410 [LNIND 1991 SC 254]; Shrimant Padmaraje R Kadambande v CIT, (1992) 3 SCC 432 [LNIND 1992 SC 344]; Maharashtra Tubes Ltd v State Industrial & Investment Corp of Maharashtra Ltd, (1993) 2 SCC 144 [LNIND 1993 SC 74]; Most Rev PMA Metropolitan v Moran Mar Marthoma, (1995) 4 SCC 286 (Supp); Uttam Das Chela Sundar Das v Shiromani Gurudwara Prabandhak Committee, (1996) 5 SCC 71 [LNIND 1996 SC 996].
7 Maxwell, Interpretation of Statutes, 12th Edn, p 13.
8 Duke of Devonshire v O’ Connor, [1890] 24 QBD 468 at 478; cf Barrow v Wadkin, (1857) 24 Beav 327.
9 Sutton v Sutton, (1883) 22 Ch D 511.
10 Maharani of Burdwan v Murtinjoy Singh, (1887) ILR 14 Cal 365 (PC) : 14 IA 30; Pope Alliance Corp v Spanish River Paper Mills, AIR 1929 PC 38 : 116 IC 593.
11 Lewis Pugh v Ashutosh Sen, AIR 1929 PC 69 : (1929) LR 56 IA 93.
12 Crawford Statutory Construction, 1940, 1989 Reprint, p 343, section 199.
13 AK Gopalan v State of Madras, AIR 1950 SC 27 [LNIND 1950 SC 22]: 1950 SCR 88 [LNIND 1950 SC 22]; MK Salpekar (Dr) v Sunil Kumar Sham Sunder Chaudari, 1988 (4) SCC 21 [LNIND 1988 SC 380] : AIR 1988 SC 1841 [LNIND 1988 SC 380]; Abdul Sajid Abdul Sadiq v State of Maharashtra, 2003 (105) (3) Bom LR 303 : 2003 4 MhLJ 306 [LNIND 2003 NGP 79] : 2003 SCC ONLINE Bom 305.
End of Document
[85.026] IllustrationsHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 4. INTERPRETATION OF STATUTES > (3) INTERNAL AIDS TO INTERPRETATION OF STATUTES > A. Interpretation of Various Sections of a Statute
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
4. INTERPRETATION OF STATUTES
(3) INTERNAL AIDS TO INTERPRETATION OF STATUTES
A. Interpretation of Various Sections of a Statute
[85.026] Illustrations
Illustrations to a provision are to be taken as part of the statute1 and be read and construed as such2. It is the duty of a court of law to accept, if that may be done, the illustrations given as being both of relevance and value in the construction of the text. The illustrations must in no case be rejected because they do not square with ideas possibly derived from another system of jurisprudence as to the law with which they, or the provisions, deal3. Illustrations may not have the effect of modifying the language of the provision4. Illustrations must also not be read as restricting its operations, especially so, when the effect would be to curtail a right which the plain words of the provision would confer5. The great usefulness of illustrations, which have, although not part of the provisions, been expressly furnished by the legislature as helpful in the working and application of the statute, must not thus be impaired6.
1 Lalla Balla Mal v Ahad Shah, AIR 1918 PC 249, 48 ICI : 35 Mad LJ 614.
2 Sopher v Administrator General of Bengal, AIR 1944 PC 67 : 71 IA 93.
3 Mahomed Syedol Ariffin v YO Gark, AIR 1916 PC 242 : (1916) LR 43 IA 256.
4 BN Railway v Ruttanji Ramji, AIR 1938 PC 67 [LNIND 1937 PC 91]: (1938) LR 65 IA 66.
5 Mahomed Syedol Ariffin v YO Gark, AIR 1916 PC 242 : (1916) LR 43 IA 256; Shambu Nath v State of Ajmer, AIR 1956 SC 404 [LNIND 1956 SC 23]: [1956] SCR 199 [LNIND 1956 SC 23].
6 Mahomed Syedol Ariffin v YO Gark, AIR 1916 PC 242 : (1916) LR 43 IA 256; Jumma Masjid v Kodimaniandra Deviah, AIR 1962 SC 847 [LNIND 1962 SC 4]: [1962] 2 SCR 554 (Supp).
End of Document
[85.027] ProvisoHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 4. INTERPRETATION OF STATUTES > (3) INTERNAL AIDS TO INTERPRETATION OF STATUTES > A. Interpretation of Various Sections of a Statute
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
4. INTERPRETATION OF STATUTES
(3) INTERNAL AIDS TO INTERPRETATION OF STATUTES
A. Interpretation of Various Sections of a Statute
[85.027] Proviso
The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. Where the language of the main enactment is clear and unambiguous, a proviso may have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms1. At the same time the main part of the provision must not be construed in such a way as to render a proviso to the provision redundant2. Generally inconsistencies may be avoided by applying the general rule that the words of a proviso are not to be taken “absolutely in their strict literal sense”3, but that a proviso is ‘of necessity limited in its operation to the ambit of the provision which it qualifies4.
A proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other5. Considerations stemming from legislative history must not be allowed to override the plain words of a statute6. A proviso may not be construed without attributing to it that effect. Further if the language of the enacting part of the statute is plain and unambiguous and does not contain the provisions which are said to occur in it, one may not derive these provisions by implication from a proviso7. The golden rule is to read the whole provision inclusive of the proviso in such a manner that it is a harmonious construction8. In exceptional cases a proviso may be a substantive provision itself and may not be really a proviso in the accepted sense9.
1 MSM Railway v Bezwada Municipality, AIR 1944 PC 71 : (1944) LR 71 IA 113; King v Dominion Engineering Co, AIR 1947 PC 94 : (1947) AWR PC 12.
2 Maxwell, Interpretation of Statutes, 12th Edn, p 38.
3 See Maxwell, Interpretation of Statutes, 12th Edn, p 189.
4 Lloyds & Scottish Finance Ltd v Modern Cars & Caravans (Kingston) Ltd, [1966] 1 QB 764 at 780; see Maxwell, Interpretation of Statutes, 12th Edn, p 189.
Page 2 of 2[85.027] Proviso
5 Ram Narain Sons v ACST, AIR 1955 SC 765 [LNIND 1955 SC 60]: [1955] 2 SCR 483 [LNIND 1955 SC 60].
6 Maxwell, Interpretation of Statutes, 12th Edn, p 65; Attorney General v St Ives RDC, [1961] 1 QB 366; Clinby v Pountney, [1968] Ch 719.
7 Craies on Statutes, 6th Edn, p 217.
8 Dwarka Prasad v Dwarka Das Soraf, (1976) 1 SCC 128 [LNIND 1975 SC 263]; Rameshchandra v State of Maharashtra, (1981) 2 SCC 722 [LNIND 1981 SC 86]; Sukhwinder v State of Punjab, (1982) 1 SCC 31 [LNIND 1981 SC 450]; Babulal Nagar v Shree Synthetics Ltd, (1984) Supp SCC 128; UOI v Tulsiram Patel, (1985) 3 SCC 398 [LNIND 1985 SC 219]; CWT v Yuvraj Amrinder Singh, (1985) 4 SCC 608 [LNIND 1985 SC 387]; Dibya Singh Malana v State of Orissa, (1989 Supp 2 SCC 312; Tribhovandas Haribhai Tamboli v Gujarat Revenue Tribunal, (1991) 3 SCC 442 [LNIND 1991 SC 282]; Mohan Lal Tripathi v DM, (1992) 4 SCC 80 [LNIND 1992 SC 420]; AN Sehgal v Raje Ram Sheoran, (1992) Supp 1 SCC 304; Mohan Kumar Singhania v UOI, (1992) 1 SCC 594; Ram Chand v UOI, (1994) 1 SCC 44; JK Industries Ltd v Chief Inspector Factories and Boilers, (1996) 6 SCC 665 [LNIND 1996 SC 1547]; Satnam Singh v Punjab & Haryana High Court, (1997) 3 SCC 353 [LNIND 1997 SC 216] : (1997) SCC (L&S) 803; Kerala State Co-op Marketing Federation Ltd v CIT, (1998) 5 SCC 48 [LNIND 1998 SC 578]; Hyderabad Asbestos Cement Products v UOI, (2000) 1 SCC 426 [LNIND 1999 SC 1101]; State of Karnataka v Krishnappa, (2000) 4 SCC 75 [LNIND 2000 SC 549] : (2000) SCC Cr 755.
9 Commr of Commercial Taxes v RS Jhaver, AIR 1968 SC 59 [LNIND 1967 SC 224]: [1968] 1 SCR 148 [LNIND 1967 SC 224] : 66 ITR 664.
End of Document
[85.028] Exceptions and saving clausesHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 4. INTERPRETATION OF STATUTES > (3) INTERNAL AIDS TO INTERPRETATION OF STATUTES > A. Interpretation of Various Sections of a Statute
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
4. INTERPRETATION OF STATUTES
(3) INTERNAL AIDS TO INTERPRETATION OF STATUTES
A. Interpretation of Various Sections of a Statute
[85.028] Exceptions and saving clauses
An exception exempts something which would otherwise fall within the purview of the general words of a statute1. It is part of the enacting clause and is of general application2. Where a general intention is expressed in an enactment, which also expresses a particular intention, which is incompatible with the general intention, the particular intention must be considered as an exception3. Exceptions must be construed strictly and strongly against the party trying to take benefit4. The mention of certain exceptions to the general rule implies that no other exceptions are contemplated. Saving clauses are generally inserted when a statute is repealed and re-enacted. The effect is that the repealed statute remains in force as regards the rights the party previously had. However, it does not create new rights in his favour. A saving clause which is repugnant to the body of the enactment is void5. A saving clause would not give any further right than what a party already had6. A saving clause may not be used to extend the scope of the prohibition contained in the main or enacting clause, because a saving clause may often be added by way of abundant caution7.
1 Vepa P Sarathi, Interpretation of Statutes,4th Edn, 2003, p 374.
2 Wilberforce, Statute Law, 1881, p 304.
3 See note 1 above.
4 See note 1 above; Kehar Singh v State, Delhi Admn, (1988) 3 SCC 609 [LNIND 1988 SC 887] : (1988) SCC Cr 711.
5 See note 1 above.
6 Vepa P Sarathi, Interpretation of Statutes,4th Edn, 2003, p 374; Maha Prasad Singh v Ramani Mohan Singh, AIR 1914 PC 140 : (1914) LR 41 IA 197.
7 Punjab Province v Daulat Singh, AIR 1942 FC 38 : (1942) FCR 67; SBK Oil Mills v Subhas Chandra, AIR 1961 SC 1596 [LNIND 1961 SC 194]: [1962] 2 SCR 159 [LNIND 1961 SC 194]; West Ramnad Electric Distribution Co Ltd v State of Madras, AIR 1962 SC 1753 [LNIND 1962 SC 492]: [1963] 2 SCR 747 [LNIND 1962 SC 492].
Page 2 of 2[85.028] Exceptions and saving clauses
End of Document
[85.029] Use of rules in interpretationHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 4. INTERPRETATION OF STATUTES > (3) INTERNAL AIDS TO INTERPRETATION OF STATUTES > A. Interpretation of Various Sections of a Statute
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
4. INTERPRETATION OF STATUTES
(3) INTERNAL AIDS TO INTERPRETATION OF STATUTES
A. Interpretation of Various Sections of a Statute
[85.029] Use of rules in interpretation
The rules provide the means by which the general principles laid down by the provisions of the enactment are applied1. Rules provide a legitimate aid to construction of the statute as contemporania expositio2. Expressions used in rules, bye-laws or forms must be read in consonance with the enactment3.
1 Nabin Chandra Tripathi v Prankrishna De, (1913) ILR 41 Cal 108 : 20 IC 39; Guruswamy v State of Mysore, AIR 1954 SC 592 [LNIND 1954 SC 104]: [1955] 1 SCR 305 [LNIND 1954 SC 104]; Chief Inspector of Mines v KC Thapar, AIR 1961 SC 838 [LNIND 1961 SC 57]: [1962] 1 SCR 9 [LNIND 1961 SC 57] : (1961) 2 LLJ 146 [LNIND 1960 SC 317]; Hiralal Rattanlal v State of Uttar Pradesh, (1973) 1 SCC 216 [LNIND 1972 SC 476] : (1973) SCC (Tax) 307.
2 TELCOv Gram Panchayat, (1976) 4SCC 177.
3 Onkarlal Nandlal v State of Rajasthan, (1985) 4SCC 404 : AIR 1986 SC 2146 [LNIND 1985 SC 292]: 1985 (2) Scale 1217 [LNIND 1985 SC 292].
End of Document
[85.030] FictionsHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 4. INTERPRETATION OF STATUTES > (3) INTERNAL AIDS TO INTERPRETATION OF STATUTES > A. Interpretation of Various Sections of a Statute
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
4. INTERPRETATION OF STATUTES
(3) INTERNAL AIDS TO INTERPRETATION OF STATUTES
A. Interpretation of Various Sections of a Statute
[85.030] Fictions
A fiction is a legal assumption that a thing is true which is either not true, or which is probably as false as true1. When one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, inevitably have flowed from it, one must not permit one’s imagination to boggle when it comes to the inevitable corollaries of that state of affairs2. When a person is deemed to be something the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were3. Where an ordinance is given the status of an enactment by use of appropriate words, it has to be so treated4.
Legal fictions are created only for some definite purpose5 and the effect of such a legal fiction, however, is that a position which otherwise would not obtain is deemed to obtain under those circumstances6 and full-effect has to be given to the deeming provisions and they are carried to their logical conclusions7however, they have to be limited to the purpose for which they were created, and must not be extended beyond that legitimate field8. A legal fiction enacted for the purpose of one enactment may not be extended to cover another enactment9.
1 Vepa P Sarathi, Interpretation of Statutes,4th Edn, 2003, p 398.
2 East End Dwellings Co Ltd v Finsbury Borough Council, [1951] 2 All ER 587 : [1952] AC 109; M Venugopal v Divisional Manager LIC, (1994) 2 SCC 323 [LNIND 1994 SC 135].
3 CIT v Bombay Trust Corp, AIR 1930 PC 54 : (1930) LR 57 IA 49.
4 State of Bombay v Pandurang, AIR 1953 SC 244 [LNIND 1953 SC 33]: [1953] SCR 773 [LNIND 1953 SC 33].
5 Bengal Immunity Co v State of Bihar, AIR 1955 SC 661 [LNIND 1955 SC 122]: [1955] 2 SCR 603 [LNIND 1955 SC 122].
6 Kamaraja Nadar v Kunju Thevar, AIR 1958 SC 687 [LNIND 1958 SC 57]: [1959] SCR 583 [LNIND 1958 SC 57].
Page 2 of 2[85.030] Fictions
7 American Home Products Corp v Mac Laboratories Pvt Ltd, (1986) 1 SCC 465 [LNIND 1985 SC 317]: State of Andhra Pradesh v Vallabhapuram Ravi, (1984) 4 SCC 410 [LNIND 1983 SC 399] : (1984) SCC Cr 635; S Appu Kuttan v Thumdiyil Janaki Amma, (1988) 2 SCC 372 [LNIND 1988 SC 19].
8 See note 5 above; Radhakissen v Durga Prasad, AIR 1940 PC 167 : (1940) ILR 2 Cal 493 : 67 IA 360; State of Travancore-Cochin v SVC Nut Factory, AIR 1953 SC 333 [LNIND 1953 SC 58]: [1954] SCR 53 [LNIND 1953 SC 58]; Cambay Electric Supply Industrial Co Ltd v CIT, (1978) 2 SCC 644 [LNIND 1978 SC 129] : (1978) SCC (Tax) 119; KS Dharmadatan v Central Govt, (1979) 4 SCC 204 [LNIND 1979 SC 256].
9 State of Maharashtra v Laljit Rajshi Shah, (2000) 2 SCC 699 [LNIND 2000 SC 387] : (2000) SCC (Cr) 533.
End of Document
[85.031] ExplanationHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 4. INTERPRETATION OF STATUTES > (3) INTERNAL AIDS TO INTERPRETATION OF STATUTES > A. Interpretation of Various Sections of a Statute
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
4. INTERPRETATION OF STATUTES
(3) INTERNAL AIDS TO INTERPRETATION OF STATUTES
A. Interpretation of Various Sections of a Statute
[85.031] Explanation
In order to arrive at the proper intent of the explanation to a provision, it will be necessary to go into the history and background of the provision together, the recommendations of the Law Commission and also the objects and reasons of the bill1. The objects of an explanation to a statutory provision are:
(1) to explain the meaning and intendment of the enactment itself;
(2) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to sub-serve;
(3) to provide an additional support to the dominant object of the enactment in order to make it meaningful and purposeful;
(4) an explanation may not in any way interfere with or change the enactment or any part thereof but where some gap is left, which is relevant for the purpose of the explanation, in order to suppress the mischief and advance the object of the enactment it may help or assist the court in interpreting the true purport or intent of the enactment; and
(5) it may not however take away the statutory right which any person under a statute has been clothed with or set at naught the working of an enactment by becoming a hindrance in the interpretation of the same2.
The construction of an explanation to a provision must depend upon its terms, and no theory of its purpose may be entertained unless it is to be inferred from the language used3. The explanation normally must be so read as to harmonise with and clear up any ambiguity in the same provision4. An explanation appended to a provision or clause, gets incorporated into it and becomes an integral part of it, and has no independent existence apart from it. There is in the eyes of the law, only one enactment of which both the provision and the explanation are two inseparable parts. “They move in a body if they move at all5.” The language of an explanation may show that it intends to create a legal fiction6.
1 Udayan Chinu Bhai v RC Bali, (1977) 4 SCC 309 [LNIND 1977 SC 271].
Page 2 of 2[85.031] Explanation
2 Sundaram Pillai v VR Pattabhiraman, (1985) 1 SCC 591 [LNIND 1985 SC 20]; Keshavji Ravji & Co v CIT, (1990) 2 SCC 231 [LNIND 1990 SC 60].
3 Krishna Ayyangar v Nallaperumal Pillai, AIR 1920 PC 56 : (1920) LR 47 IA 33.
4 Sulochana Amma v Narayan Nair, (1994) 2 SCC 14; Bihta Co-op Devp Cane Marketing Union v Bank of Bihar, AIR 1967 SC 389 [LNIND 1966 SC 253]: [1967] 1 SCR 848 [LNIND 1966 SC 253].
5 Bengal Immunity Co v State of Bihar, AIR 1955 SC 661 [LNIND 1955 SC 122]: [1955] 2 SCR 603 [LNIND 1955 SC 122] : 6 STC 446; see also DG Mahajan v State of Maharashtra, (1977) 2 SCC 548 [LNIND 1977 SC 56].
6 Vrajlal Manilal & Co v State of Madhya Pradesh, (1986) Supp SCC 201.
End of Document
[85.032] ScheduleHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 4. INTERPRETATION OF STATUTES > (3) INTERNAL AIDS TO INTERPRETATION OF STATUTES > A. Interpretation of Various Sections of a Statute
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
4. INTERPRETATION OF STATUTES
(3) INTERNAL AIDS TO INTERPRETATION OF STATUTES
A. Interpretation of Various Sections of a Statute
[85.032] Schedule
The schedule in an Act of Parliament must be read together with the enactment for all purposes of construction. Expressions in the schedule may not control or prevail against the express enactment and in case of any inconsistency between the schedule and the enactment, the enactment is to prevail and if any part of the schedule may not be made to correspond it must yield to the enactment. It is the legislative intent that is material1.
1 Aphali Pharmaceuticals Ltd v State of Maharashtra, (1989) 4 SCC 378 [LNIND 1989 SC 454].
End of Document
[85.033] Directory or mandatory provisionsHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 4. INTERPRETATION OF STATUTES > (3) INTERNAL AIDS TO INTERPRETATION OF STATUTES > A. Interpretation of Various Sections of a Statute
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
4. INTERPRETATION OF STATUTES
(3) INTERNAL AIDS TO INTERPRETATION OF STATUTES
A. Interpretation of Various Sections of a Statute
[85.033] Directory or mandatory provisions
To ascertain the legislative intent as to whether a particular provision in the enactment is mandatory or directory due consideration must be given to the subject matter, the importance of the provision, and the relation of that provision to the general object intended to be secured by the enactment, since these factors would show whether the provision is mandatory or directory1.
1 Re Presidential Poll, AIR 1974 SC 168 : [1975] 1 SCR 504; GC Patel v Agricultural Produce Market Committee, (1975) 2 SCC 482 [LNIND 1975 SC 300].
End of Document
[85.034] Definition, interpretation clause and General Clauses Act 1897Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 4. INTERPRETATION OF STATUTES > (3) INTERNAL AIDS TO INTERPRETATION OF STATUTES > A. Interpretation of Various Sections of a Statute
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
4. INTERPRETATION OF STATUTES
(3) INTERNAL AIDS TO INTERPRETATION OF STATUTES
A. Interpretation of Various Sections of a Statute
[85.034] Definition, interpretation clause and General Clauses Act 1897
It is common for a statute to contain a provision that certain words and phrases will, when used in the statute, bear particular meanings1. This provision known as definition prima facie must entirely determine the application of the phrase, however, the definition must itself be interpreted before it is applied and interpreted, in case of doubt, in a sense appropriate to the phrase defined and to the general purpose of the enactment2. The definition of any given word may either be exhaustive, restrictive or expansive3. Even a definition clause must derive its meaning from the context or subject4. Where in a definition provision of a statute, a word is defined to mean a certain thing, wherever that word is used in that statute, it will mean what is stated in the definition unless the context otherwise requires5.
The burden lies on them who contend that the definition given in the definition clause does not apply in the given context, to establish the same6. However, where the definition is an inclusive one, the word not only bears its ordinary, popular and natural sense, whenever that would be applicable but it also bears its extended statutory meaning7. The frame of any definition more often than not is capable of being made flexible. However, the precision and certainty in law requires that it must not be made loose but kept tight as far as possible8.
An artificial definition may include a meaning different from, or in excess of the ordinary acceptation of the word which is the subject of definition. However, then there must be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended9. Where within the framework of the ordinary acceptation of the word, every single requirement of the definition clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of the word defined10. The principle that in construing a statutory provision or rule, every word occurring therein must be given its proper meaning and weight is all the more important in a definition clause, however, even a definition clause must derive its meaning from the context or subject11. Again while dealing with an inclusive definition, it would be inappropriate to put a restrictive interpretation upon terms of wider denotation12. The definition of the phrase “laws in force” is an inclusive definition13. An attempt must be made to give meanings to the words which are intended to lay down the full connotation14. The word “includes” is generally used as a word of extension but the meaning of a word or phrase is extended when it is said to include things that would not properly fall within its ordinary connotation15. For the purpose of construing any enactment it is right to look, not only at the provision immediately under construction, but at any others found in connection with it which may throw light upon it, and afford an indication that general words employed in it were not intended to be applied without some limitation16. Definitions, interpretation clause and General Clauses Act, 1897:
Page 2 of 3[85.034] Definition, interpretation clause and General Clauses Act 1897
(1) do not take away the ordinary and natural meaning of the words, but are used17:
a. to extend the meaning of a word to include or cover something, which would not normally be covered or included; and
b. to interpret ambiguous words and words which are not plain or clear;
(2) the definition must ordinarily determine the application of the word or phrase defined. However, the definition itself must first be interpreted before it is applied;
(3) when the definition of a word gives it an extended meaning, the word is not to be interpreted by its extended meaning every time it is used, for the meaning ultimately depends on the context, and a definition clause does not, ordinarily enlarge the scope of the enactment;
(4) a court must not lay down a rigid definition and crystallise the law, when the legislature, in its wisdom has not done so;
(5) it is ordinarily unsafe to seek the meaning of words used in an enactment, in the definition clause of other statutes even when enacted by the same legislature. However, where a word or phrase used in an enactment, is used in another enactment which is in pari materia and the word is not defined in that other enactment, then the word may be given the meaning given in the first enactment;
(6) definitions in an enactment are to be applied only when there is nothing repugnant in the subject or context, and this is so even if such a qualifying provision is not expressly stated by the legislature;
(7) the words “that is to say” are not words of restriction. They are words of illustration, and the instances that follow operate as a guide for interpretation;
(8) an interpretation clause may use the verb “includes” or “means” or “means and includes”, or “denotes” or “deemed to be”;
(9) the word “includes” is generally used in the interpretation clause to enlarge the meaning of words or phrases occurring in the body of the statute and when it is so used, those words and phrases must be considered as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they will include18;
(10) where the words “means” or “means and includes” are used it affords an exhaustive explanation of the meaning which, for the purposes of the enactment, must inevitably be attached to those words or expressions;
(11) where the word “denotes” is used it has the same significance as “includes”;
(12) where the words “deemed to be” is used it creates a fiction and a thing is treated to be that which in fact it is not;
(13) where a special definition of a word or phrase is set out in an enactment, the meaning of this word or phrase as given in such definition must normally be adopted in the interpretation of the statute19. In the absence of such a definition, the General Clauses Act, 1897 of the particular legislature which enacted the statute must be referred to. Where the word is not defined, there also the rules of interpretation would come into play.
1 Maxwell, Interpretation of Statutes, 12th Edn, p 270.
2 Cadija Umma v Manis Appu, AIR 1939 PC 63 : 180 IC 971; Immigration Board v Govindasamy, AIR 1920 PC 114.
3 Kishan Lal v State of Rajasthan, AIR 1990 SC 2269 : (1990) Supp 7 SCC 42 : [1990] 2 SCR 142 : (1990) 1 JT 550.
4 Nagpur Electric Co Ltd v Shreepathirao, AIR 1958 SC 658 [LNIND 1958 SC 48]: [1959] SCR 463 [LNIND 1958 SC 48].
5 SK Gupta v KP Jain, (1979) 3 SCC 54 [LNIND 1979 SC 75]; Vanguard Fire & General Insurance Co Ltd Madras v Fraser & Ross, AIR 1960 SC 971 [LNIND 1960 SC 151]at 975; Balaganesan Metals v Shanmugam Chetty, AIR 1987 SC 168; Pushpa Devi v Milkhi Ram, AIR 1990 SC 808 [LNIND 1990 SC 69]: (1990) 2 SCC 134 [LNIND 1990 SC 69]; NK Jain v CK Shah, AIR 1991 SC 1289 [LNIND 1991 SC 173]at 1303-1305 : (1991) 2 SCC 495 [LNIND 1991 SC 173].
6 Knight Ridge Estates Trust Ltd v Byrne, [1940] 2 All ER 401 (HL) : [1940] AC 613.
Page 3 of 3[85.034] Definition, interpretation clause and General Clauses Act 1897
7 See note 5 above; Nagpur Corp v Employees, AIR 1960 SC 675 [LNIND 1960 SC 32]: [1960] 2 SCR 942 [LNIND 1960 SC 32].
8 Kalya Sing v Genda Lal, (1976) 1 SCC 304 [LNIND 1975 SC 89]; SK Gupta v KP Jain, (1979) 3 SCC 54 [LNIND 1979 SC 75].
9 Hariprasad v Divikar, AIR 1957 SC 121 [LNIND 1956 SC 104]: [1957] SCR 121 [LNIND 1956 SC 104].
10 See note 7 above; N Subramania Iyer v Official Receiver, AIR 1958 SC 1 [LNIND 1957 SC 72].
11 Nagpur Corp v Employees, AIR 1960 SC 675 [LNIND 1960 SC 32]: [1960] 2 SCR 942 [LNIND 1960 SC 32].
12 State of Bombay v Hospital Mazdoor Sabha, AIR 1960 SC 610 [LNIND 1960 SC 19]: [1960] 2 SCR 866 [LNIND 1960 SC 19].
13 Santram v Labh Singh, AIR 1965 SC 314 [LNIND 1964 SC 137]: [1964] 7 SCR 756 [LNIND 1964 SC 137].
14 Secretary, Madras Gymkhana Club Employees Union v Gymkhana Club, AIR 1968 SC 554 [LNIND 1967 SC 291]: [1968] 1 SCR 742 [LNIND 1967 SC 291].
15 South Gujarat Roofing Tiles Manufacturers v State of Gujarat, (1976) 4 SCC 601 [LNIND 1976 SC 381] : (1977) SCC (L&S) 15.
16 SK Gupta v KP Jain, (1979) 3 SCC 54 [LNIND 1979 SC 75].
17 Vepa P Sarathi, Interpretation of Statutes,4th Edn, 2003, pp 364-365.
18 P Kasilingam v PSG College of Technology, AIR 1995 SC 1395 [LNIND 1995 SC 418]: (1995) Supp 2 SCC 348.
19 Official Lquidator v Jugal Kishore, AIR 1939 All 113.
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[85.035] Dictionaries and textbooksHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
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[85.035] Dictionaries and textbooks
Dictionaries are not to be taken as authoritative exponents of the meaning of words used in enactments of Parliament, however, it is a well-known rule of courts of law that words must be taken to be used in their ordinary sense and therefore one is sent for instruction to these books1 and dictionaries may be used as an aid to resolve an ambiguity2. Care must however be exercised in the use of such works3. Dictionaries are for consultation in the absence of any judicial guidance or authority4.
Where the enactment does not define a word, the legislature must be taken to have used the word in its ordinary dictionary meaning5. The safest guide, as always, is the statute itself6. Unrestricted reference to dictionaries must be avoided and the well-known canon of construction that the meaning of words and expressions used in a statute ordinarily take their colour from the context in which they appear must be kept in mind7. Textbooks may also be referred to for assistance in finding the true construction of a statute8. However, the court would never hesitate to disagree with a statement in a textbook, no matter how authoritative or however long it had stood, if it thought right to do so9.
The practice which has been followed in a matter in the past may influence the interpretation to be placed on legislation10.
1 R v Peters, [1886] 16 QBD 636 at 641; cf Margins of Camden v IRC, [1914] 1 KB 641.
2 CIT v Benoy Kumar Sahas Roy, AIR 1975 SC 768.
3 Maxwell, Interpretation of Statutes, 12th Edn, p 55.
4 Ker v Kennedy, [1942] 1 KB 409 at 413.
5 South Bihar Sugar Mills Ltd v UOI, AIR 1968 SC 922 [LNIND 1968 SC 30]: [1968] 3 SCR 21 [LNIND 1968 SC 30].
6 Ishwarlal v State of Gujarat, AIR 1968 SC 870 [LNIND 1967 SC 326]: [1968] 2 SCR 267 [LNIND 1967 SC 326]; Madhav Rao Scindia v UOI, (1971) 1 SCC 85 [LNIND 1970 SC 481]; State of Andhra Pradesh v Mohd Ashrafuddin, (1982) 2 SCC 1 [LNIND 1982 SC 61]; Swadesh Polytex Ltd v Commissioner of Central Excise, (1990) 2 SCC 358 [LNIND 1989 SC 585]; Ess Dee Carpet Enterprises v UOI, (1990) 1 SCC 461 [LNIND 1989 SC 612]; Gopal Reddy v State of Andhra Pradesh, (1996) 4 SCC 596 [LNIND 1996 SC 1040]; Municipal Board Saharanpur v Imperial Tobacco
Page 2 of 2[85.035] Dictionaries and textbooks
of India Ltd, (1999) 1 SCC 566 [LNIND 1998 SC 1044]; United Bank of India v DRT, (1999) 4 SCC 69 [LNIND 1999 SC 371].
7 RS Nayak v AR Antulay, (1984) 2 SCC 183 [LNIND 1984 SC 43] : (1984) SCC Cr 172; Gramaphone Co of India Ltd v Birendra Bahadur Pandey, (1984) 2 SCC 534 [LNIND 1984 SC 51] : (1984) SCC (Cr) 313; CGT v NS Gethi Chettiar, (1971) 2 SCC 741 [LNIND 1971 SC 469].
8 Maxwell, Interpretation of Statutes, 12th Edn, p 56.
9 Bastin v Daires, [1950] 2 KB 579.
10 Maxwell, Interpretation of Statutes, 12th Edn, p 56; Re Holt’s Settlement, [1969] 1 Ch 100.
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[85.038] Doctrine of stare decisisHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
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[85.038] Doctrine of stare decisis
A precedent by long recognition may mature into stare decisis. Stare decisis et non quieta movere, that is, to stand by decisions and not to disturb what is settled, is regarded as a rule of policy which promotes predictability, certainty, uniformity and stability1. However, whether it is to be followed in a given case or not is a question entirely within the discretion of the court2. However, future perpetration of illegality is no part of the doctrine of stare decisis3.
1 Waman Rao v UOI, (1981) 2 SCC 362 [LNIND 1980 SC 253] : (1980) 3 SCC 587 [LNIND 1980 SC 253].
2 Supreme Court Advocates on Record Association v UOI, (1973) 4 SCC 856 441; see also Sambhu Nath Sarkar v State of West Bengal, (1973) 1 SCC 856 [LNIND 1973 SC 138].
3 Waman Rao v UOI, (1981) 2 SCC 362 [LNIND 1980 SC 253].
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[85.039] Meaning of caveat emptorHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 5. CAVEAT EMPTOR
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5. CAVEAT EMPTOR
[85.039] Meaning of caveat emptor
The term caveat emptor1 means, let a purchaser beware. Caveat emptor qui ignorare non debuit quod jus alienum emit, let a purchaser who ought not to be ignorant of the amount and nature of the interest which he is about to buy, exercise proper caution.2 By the general rules of law, there is no warranty of quality arising from the bare contract of sale of goods, and that, where there has been no fraud3, a buyer who has not obtained an express warranty, takes all risk of defect in the goods, unless there are circumstances present from which a warranty of quality may be implied4. An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade5 or by the provisions of a statute6.
As a general rule, an express warranty or condition does not negative a warranty or condition implied by law, unless inconsistent therewith7. With regard to express warranties, the general rule is that every affirmation made at the time of sale is a warranty, provided it appears on the evidence to have been so intended, the question whether or not it was intended being one of fact for the jury.
No special form of words is required to constitute a warranty, for if the seller assumes to assert a fact of which the buyer is ignorant, he will generally be taken to have intended a warranty. However, it is otherwise, if he merely gives an opinion on a matter of which he has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment8. In the absence of an agreement to the contrary, a general warranty does not usually extend to defects apparent on simple inspection, requiring no skill to discover them nor to defects known to the buyer9. However, the notion of caveat emptor has now been replaced by a special responsibility on the part of a manufacturer to market only defect free goods10.
1 Broom’s Legal Maxims, 10th Edn, p 528.
2 Justice N. Rama Jois p 150
3 As to fraud see generally [105] CRIMINAL LAW.
4 Springwell v Allen Alleyn 91 and 2 East 448n; Ward v Hobbs, 4 App Cas13.
5 Sale of Goods Act, 1930 section 16(3).
6 Sale of Goods Act, 1930 section 16.
7 Sale of Goods Act, 1930 section 16(4).
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8 Pasley v Freeman 3 TR 51.
9 Benjamin on Sale, 7th Edn, p 699.
10 Dynavox Electronics Ltd v Kalipada Panjal, (1998) 2 CPR 369.
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[85.040] Consumer Consumer means any person who:Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (1) MEANINGS
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(1) MEANINGS
[85.040] Consumer Consumer means any person who:
(1) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the 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 purpose1. However, for the purpose of the Consumer Protection Act, 1986 “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purposes of earning his livelihood by means of self-employment2.
The definition of consumer is in two parts. The first deals with goods and the other with services. Both parts first declare the meaning of goods and services by use of wide expression. Their ambit is further enlarged by use of inclusive clause, for instance, it is not only purchaser of goods or hirer of services but even those who use the goods or who are beneficiaries of services with approval of the person who purchased the goods or who hired services are included in it3; or
(2) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose4. Where the complainant alleges a defect in the goods which may not be determined without proper analysis or test of the goods, the district forum will obtain a sample of the goods from the complainant, seal it, authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make 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 suffer from any other defect and to report its findings thereon to the district forum within a period of 45 days of the receipt of the reference or within such extended period as may be granted by the district forum5.
Goods means goods as defined in the Sale of Goods Act, 1930 (3 of 1930)6
Page 2 of 2[85.040] Consumer Consumer means any person who:
1 Consumer Protection Act, 1986 section 2(1)(d)(i).
2 Consumer Protection Act, 1986 section 2(1)(d) explanation.
3 Lucknow Development Authority v MK Gupta, AIR 1944 SC 787 : (1994) I SCC 243 : (1994) 80 Com Cas 714.
4 Consumer Protection Act, 1986 section 2(1)(d)(ii).
5 See the Consumer Protection Act, 1986 section 13(1)(c).
6 Consumer Protection Act, 1986 section 2(1)(i).
Goods means every kind of movable property other than 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: see the Sale of Goods Act, 1930 section 2(7).
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[85.041] ManufacturerHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
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(1) MEANINGS
[85.041] Manufacturer
Manufacturer’ means a person who:
(1) makes or manufactures any goods1 or part thereof; or
(2) does not make or manufacture any goods but assembles parts thereof made or manufactured by others; or
(3) puts or causes to be put his own mark on any goods made or manufactured by any other manufacturer2.
1 As to meaning of “goods” see [85.040] note 6.
2 Consumer Protection Act, 1986 section 2(1)(j).
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[85.042] MemberHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
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(1) MEANINGS
[85.042] Member
“Member” includes the President and a member of the National Commission or a State Commission or a District Forum as the case may be1.
1 Consumer Protection Act, 1986 section 2(1)(jj).
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[85.043] Appropriate laboratoryHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
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(1) MEANINGS
[85.043] Appropriate laboratory
Appropriate laboratory means a laboratory or organisation1:
(1) recognised by the Central Government2;
(2) recognised by a State Government, subject to such guidelines as may be prescribed by the Central Government in this behalf3; or
(3) any such laboratory or organisation established by or under any law for the time being in force, which is maintained, financed or aided by the Central Government or a state government for carrying out analysis or test of any goods with a view to determining whether such goods suffer from any defect4.
1 Consumer Protection Act, 1986 section 2(1)(a); see also EID Parry Ltd v Baby Benjamin Tushara, (1992) 1 CPR 125.
2 Consumer Protection Act, 1986 section 2(1)(a)(i).
3 Consumer Protection Act, 1986 section 2(1)(a)(ii).
4 Consumer Protection Act, 1986 section 2(1)(a)(iii).
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[85.044] Branch officeHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
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(1) MEANINGS
[85.044] Branch office
Branch office means:
(1) any establishment described as a branch by the opposite party1; or
(2) any establishment carrying on either the same or substantially the same activity as that carried on by the head office of the establishment2.
1 Consumer Protection Act, 1986 section 2(1)(aa)(i).
2 Consumer Protection Act, 1986 section 2(1)(aa)(ii).
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[85.045] EstablishmentHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
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(1) MEANINGS
[85.045] Establishment
An establishment is an institution or place of business or a group of people who are in power or who control or exercise great influence over something1. It is a constituted order or system2.
1 Bryan A Garner Black’s Law Dictionary, 3rd Pocket Edn 2006, p 251.
2 Random House Dictionary of the English Language; Manager, Air India Ltd v A Moideen Kutty, (2003) 1 CPJ 65 : (2002) 2 CPR 4 (NC); Patel Roadways Ltd v Tokusou Menon Paper Manufacturing Co Ltd, (1997) 1 CPR 144; Estate Officer, Haryana Urban Development Authority v JK Khanna, (1994) 2 CPJ 90 (NC).
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[85.050] Unfair trade practiceHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
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[85.050] Unfair trade practice
Unfair trade practice 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 practices, namely1:
(1) the practice of making any statement, whether orally or in writing or by visible representation which2:
(a) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model3;
(b) falsely represents that the services are of a particular standard, quality or grade4;
(c) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods5;
(d) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have6;
(e) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have7;
(f) make a false or misleading representation concerning the need for, or the usefulness of, any goods or services8;
(g) 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 thereof9;
(h) Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence will lie on the person raising such defence10;
(i) makes to the public a representation in a form that purports to be11:
(i) a warranty or guarantee of a product or of any goods or services; or
(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise
Page 2 of 2[85.050] Unfair trade practice
is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;
(j) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price will be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made12;
(k) gives false or misleading facts disparaging the goods, services or trade of another person13.
The expression “unfair trade practice” has been assigned the same meaning as assigned to it in the Monopolies and Restrictive Trade Practices Act, 196914.
1 Consumer Protection Act, 1986 section 2(1)(r).
2 Consumer Protection Act, 1986 section 2(1)(r)(1).
3 Consumer Protection Act, 1986 section 2(1)(r)(1)(i); see also Vinoo Bhagat v General Motors India Ltd and Regent Automobiles Ltd, (2003) 2 CPJ.
4 Consumer Protection Act, 1986 section 2(1)(r)(1)(ii).
5 Consumer Protection Act, 1986 section 2(1)(r)(1)(iii); see also Santosh Kundan Singh Rawat v Harshal Bhanudosrao Mahale, (1995) 1 CLT 18 : (1995) CPJ 271 (NCDRC).
6 Consumer Protection Act, 1986 section 2(1)(r)(1)(iv).
7 Consumer Protection Act, 1986 section 2(1)(r)(1)(v).
8 Consumer Protection Act, 1986 section 2(1)(r)(1)(vi).
9 Consumer Protection Act, 1986 section 2(1)(r)(1)(vii).
10 Consumer Protection Act, 1986 section 2(1)(r)(1)(vii) proviso.
11 Consumer Protection Act, 1986 section 2(1)(r)(1)(viii).
12 Consumer Protection Act, 1986 section 2(1)(r)(1)(ix).
13 Consumer Protection Act, 1986 section 2(1)(r)(1)(x).
14 Ie as assigned in the Monopolies and Restrictive Trade Practices Act, 1969 section 36A; see also Mantora Oil Products Pvt Ltd v The Oriental Insurance Co Ltd (Kanpur), (1991) 1 CPR 181 (NCDRC) (from the very terms of the definition of the expression “unfair trade practice” contained in the Monopolies and Restrictive Trade Practices Act, 1969 section 36A which has been made applicable to the Consumer Protection Act, 1986 section 2(1)(r), it is absolutely clear that it applies not merely to the sale or supply of any goods but also to the provision of any service).
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[85.049] TraderHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
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(1) MEANINGS
[85.049] Trader
A trader in relation to any goods means a 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 the packer thereof1.
1 Consumer Protection Act, 1986 section 2(1)(c)(q).
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[85.051] Restrictive trade practiceHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
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(1) MEANINGS
[85.051] Restrictive trade practice
“Restrictive trade practice” means 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 and will include:
(1) delay beyond the period agreed to by a trader in supply of such goods or in providing the services which has led or is likely to lead to rise in the price;
(2) any trade practice which requires a consumer to buy, hire or avail of any goods or, as the case may be, services as condition precedent to buying, hiring or availing of other goods or services1.
It is only where a trade practice has the effect actual or probable of restricting, lessening or destroying competition that it is liable to be regarded as a restrictive trade practice2. When a question arises whether a certain trade practice is restrictive or not it has to be decided not on any theoretical or apriori reasoning, but by enquiry whether the trade practice has or may have the effect of preventing, disturbing or restricting competition.
1 Consumer Protection Act, 1986 section 2(1)(nnn).
2 Mahindra and Mahindra Ltd v UOI, (1979) 2 SCC 529 [LNIND 1979 SC 59]; State of Uttar Pradesh v Gir Prasad, (2004) 3 SCC 152 [LNIND 2004 SC 258] (SC) : (2004) 2 CPJ 1.
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[85.052] Aims and objectives of the Consumer Protection Act, 1986Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
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(2) Consumer Protection ACT, 1986
[85.052] Aims and objectives of the Consumer Protection Act, 1986
By defining “complaint”, “complainant”, “consumer”, by mentioning in detail what would amount to “unfair trade practice”, by giving an elaborate definition and by even defining “defect” and “deficiency” for which a consumer may approach the commission, the Consumer Protection Act, 1986 aims to protect the economic interest of a consumer as understood in commercial sense, that is, as a purchaser of goods and in the larger sense of user of services1.
The beneficiary for whose benefit administrative charges are paid by the government is also a consumer2. Renderer of service is not a consumer3 nor is a seller who sells or obtains goods for commercial purposes4. The word commercial purpose has a wide connotation and the determination of purpose in a consumer case must be done by taking into account a number of factors, such as, the scope of business, whether it is in the nature of earning a livelihood or earning substantial profits, currently as well as in future5. A person within the scope of Consumer Protection Act, 1986 will include a company6.
The common characteristics of goods and services are that they are supplied at a price to cover the costs and generate profit or income for the seller of goods or provider of services. However, the defect in one and the deficiency in the other may have to be removed and compensated differently. The former is, normally, capable of being replaced and repaired whereas the latter may be required to be compensated by award of equivalent value or damages, for loss7. Consideration is recompense payment and the inducement to a contract or other legal transaction specifically an act or forbearance or the promise thereof done or given by one party in return for the act or promise of another8.
When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise9.
The Consumer Protection Act, 1986 has been framed to protect and redress an aggrieved consumer whether he has a complaint of a petty or gross nature10.
With the Consumer Protection Act, 1986 coming into force, the feeling of immunity from accountability is to be
Page 2 of 2[85.052] Aims and objectives of the Consumer Protection Act, 1986
eradicated from the mind of each and every individual connected with the sale and supply of goods and rendering of services for consideration. The language of the enactment has been intentionally adopted by the legislature to make it broad and for bringing within its sweep all services rendered for consideration. The scope of the expression consumer includes not only the persons who hired the services but also beneficiaries of such services with approval of the persons who have hired the services11.
1 Lucknow Development Authority v MK Gupta, AIR 1994 SC 787 [LNIND 1993 SC 946]: (1994) 1 SCC 243 [LNIND 1993 SC 946] : (1994) 80 Com Cas 714.
2 Regional Provident Fund Commr v Shiv Kumar Joshi, AIR 2000 (SC) 331 [LNIND 1999 SC 1155]: (1999) 3 CPJ 33 : (2000) 1 SCC 98 [LNIND 1999 SC 1155] : (2000) Lab IC 232.
3 M MehaboobKazi v Fiaz, (1994) 3 CPR 524.
4 Sekhdev Raj Baldev Raj v Darshan Singh, (1993) 1 CPJ 160 : (1993) 1 CPR 735.
5 Kores (India) Ltd v Samir Purkayastha, (1996) 2 CPJ 71 (NC) : (1996) 4 CTJ 579; see also Cheema Engineering Services v Rajan Singh, (1997) 1 SCC 131 [LNIND 1996 SC 1802] : (1997) 88 Com Cas 400, (“self-employment” found in the explanation which has not been defined would mean that he (purchaser) alone or members of his family use the machinery purchased for the purpose of manufacture by employing himself or members of his family in working out or producing the goods for earning his livelihood).
6 Jay Kay Puri Engineering and anor v Mohan Breweries & Distilleries Ltd, (1996) 1 CPR 102 (NC) : (1997) 5 CTJ 56; Shri Laxmi Cotton Traders Ltd v Central Warehousing Corp, (1996) 3 CPJ 22 (NC) : (1997) 5 CTJ 27.
7 Lucknow Development Authority v MK Gupta, AIR 1994 SC 787 [LNIND 1993 SC 946]: (1994) 1 SCC 243 [LNIND 1993 SC 946] : (1994) 80 Com Cas 714.
8 Omit Webster’s Third New International Dictionary New Collegiate Dictionary, 9th Edn, 1988, p 280.
9 Indian Contract Act, 1872 section 2(d) (see CONTRACT [95.041]); see also the Indian Contract Act, 1872 section 2 for the definitions of proposal, promise, promisor, promisee, agreement and reciprocal promises; Indian Contract Act, 1872 section 23 for lawful consideration and objects; Indian Contract Act, 1872 section 24 for void agreements and Indian Contract Act, 1872 section 25 for void consideration.
10 JagmittarSainBhagat v Director, Health services, Haryana, (2013) 10 SCC 136 [LNINDORD 2013 SC 35442]; General Manager, BEST, Bombay v Milind G Dixit, (1991) 2 CPJ 581.
11 Biren Kumar Jagdev v Controller of Examination, Utkal University, (1992) 2 CPJ 903.
End of Document
[85.053] Who are consumersHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (2) Consumer Protection ACT, 1986 > A. Consumers
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(2) Consumer Protection ACT, 1986
A. Consumers
[85.053] Who are consumers
Member of provident fund scheme1, allottee of flat2, potential user who registers for allotment of flat3, customer enjoying overdraft facilities4, hirer of services of army welfare society5, beneficiary under ESI6, purchaser of EPABX system for hotel business with warranty and annual maintenance contract7, shareholder of co-operative society8, hirer of services even if not the owner of articles entrusted for repair9, purchaser of truck for self-employment10, small farmers purchasing poultry concentrate11, purchaser of computer for desktop printing12, persons getting the benefit of water supply13, landowner entering into an agreement with a builder for construction of his own house14, private limited company15, members who paid instalments to housing Society 16farmer buying seeds17, assignee18, Society running a charitable non-profit hostel19, university seeking return of invested funds20 are consumers.
The provision indicates that a person claiming himself as a consumer of goods must satisfy that:
(1) the goods are bought for consideration and there must be a sale transaction between a seller and a buyer, the sale must be of goods and the goods must be bought for a consideration. The terms sale, goods and consideration have not been defined in the Consumer Protection Act, 1986. The meaning of the terms sale and goods is to be constructed according to the Sale of Goods Act, 1930, and the meaning of the term consideration is to be constructed according to the Indian Contract Act, 1872;
(2) any person who uses the goods with the approval of the buyer is a consumer and when a person buys goods, they may be used by his family members, relatives and friends. Any person who is making actual use of the goods may come across the defects in goods, thus the law construes users of the goods as consumers although they may not be the buyers at the same time. The words with the approval of the buyer in this definition denote that the user of the goods must be the rightful user;
(3) any person who obtains the goods for “resale” or for commercial purpose is not a consumer and the term “for resale” implies that the goods are brought for the purpose of selling them, and the expression “for commercial purpose” is intended to cover cases other than those of resale of goods. When goods are brought to resell or commercially exploit them, such buyer or user is not a consumer under the Consumer Protection Act, 1986;
Page 2 of 3[85.053] Who are consumers
(4) person buying for self-employment is a consumer and when goods are bought for commercial purpose and such a purchase satisfies the following criteria:
(a) the goods are used by the buyer himself;
(b) the goods are used exclusively for the purpose of earning his livelihood;
(c) the goods are used for means of self-employment, then such use would not be termed as use for commercial purposes under the Consumer Protection Act, 1986, and the user is recognised as a consumer21.
The intention of the legislature is to exclude big business houses carrying on business with profit motive from the purview of the aforementioned enactment and at the same time it is pertinent to save the interests of small consumers who buy goods for self-employment to earn their livelihood, like a rickshaw puller buying rickshaw for self-employment, or a farmer purchasing fertilizer for his crops, or a taxi driver buying a car to run it as a taxi, and the like22.
A person is a consumer of services if he satisfies the following criteria:
(i) the term “hired” has not been defined under the Consumer Protection Act, 1986 and its dictionary meaning is to procure the use of services at a price. Thus, the term “hire” has also been used in the sense of “avail” or “use”. Accordingly, the consumer means any person who avails or uses any service for a price;
(ii) consideration is regarded as necessary for hiring or availing of services. However, its payment need not necessarily be immediate and may be paid in instalments;
(iii) beneficiary of services is also a consumer and when a person hires services, he may hire it for himself or for any other person23.
1 Regional Provident Fund Commr v Shiv Kumar Joshi, AIR 2000 SC 331 [LNIND 1999 SC 1155]: (2000) 1 SCC 98 [LNIND 1999 SC 1155] : (1999) 3 CPJ 36 : (2000)(1) CPR 61 (SC) : (2000) 1 CLR 415, Regional Provident Fund Commr v Bhavani, (2008) 7 SCC 111 [LNIND 2008 SC 941] : AIR 2008 SC 2957 [LNIND 2008 SC 941]: 2008 (6) Scale 773 [LNIND 2008 SC 941] : 2008 (6) JT 56 : 2008 (2) CPJ 9 : 2008 (2) CLT 302 (SC).
2 SnehChadda v Delhi Development Authority, (1991) 1 CPR 532 (NC).
3 TNHB v AV Ramakrishnan, (1994) 3 CPJ 137 : (1995) 3 CTJ 29 : (1995) 1 CPC 47 : (1994 (3) CPR 108 (NC).
4 Vimal Chandra Grover v Bank of India, AIR 2000 SC 2181 [LNIND 2000 SC 738]: (2000) 5 SCC 122 [LNIND 2000 SC 738] : (2001) 1 CPR 7 (SC).
5 Lucknow Development Authority v MK Gupta, (1992) 3 CPJ 7; BL Gupta v Managing Director, Army Welfare Housing Organisation, (1994) 3 CPJ 40.
6 Regional Director, Employees State Insurance Corp v TI Ulahannan, (1996) 2 CPC 57 : (1996) 3 CPR 104 (NC); ML Gupta v Director, State Insurance Dept, Rajasthan, (1996) 2 CPC 487 : (1996) 3 CPR 90 (NC).
7 CP Moosa v Chowgle Industries Ltd, (2001) 2 CPR 92 (NC) : (2001) 3 CPJ 9 : (2001) 2 CPC 474 (NC).
8 Sargerao Rangarao Ingle v Executive Director, Jai Jawan Jai Kisan Co-op Sugar Factory, (2000) 2 CPR 48 (NC) : (2000) 2 CPC 272 (NC).
9 Motibhushan Mishra v Basant Lal Verma, (1993) 3 CPR 137 : (1993) CPC 824 : (1993) 1 CTJ 1054.
10 Tata Engineering & Locomotive Co Ltd v Gajanan Y Mandrekar, (1996) 3 CPR 218 : (1996) 3 CPJ 123 (NC); Madan Kumar Singh v District Magistrate, Sultanpur, (2009) 9 SCC 79 [LNIND 2009 SC 1642] : 2009 (10) JT 380 : 2009 (4) CPJ 3 : 2009 (4) CPR113.
11 Branch Executive, Godrej Soaps Ltd v M Uttarshavardhana Reddy, (1996) 3 CPR 1 (NC) : (1996) 2 CPC 462 (NC).
12 Arunodhaya Printers v Mehta Co, (2003) 2 CPJ 87 (NC).
13 Garhwal Jal Sansthan v NagarikParishad, (1997) 6 SCC 116.
14 Faqir Chand Gulati v Uppal Agencies Pvt Ltd, (2008) 10 SCC 345 [LNIND 2008 SC 1369] : 2008 (7) JT 552 : 2008 (4) CPR 449, Sujit Kumar Banerjee v Rameshwaran, (2008) 10 SCC 366 [LNIND 2008 SC 1368] : 2008 (7) JT 568 : (2008)
Page 3 of 3[85.053] Who are consumers
CPJ 62 (SC); Bhunga Daniel Babu v Sri Vasudeva Constructions, (2016) 8 SCC 429 [LNIND 2016 SC 684] : AIR 2016 SC 3488 [LNIND 2016 SC 684]: (2016) 3 CPR 323 SC
15 Karnataka Power Transmission Corp v Ashok Iron Works Pvt Ltd, (2009) 3 SCC 240 [LNIND 2009 SC 270] : AIR 2009 SC 1905 [LNIND 2009 SC 270]: 2009 (2) JT 447 : 2009 (2) Scale 337 [LNIND 2009 SC 270].
16 Virender Jain v Alaknanda Co-op Group Housing Society Ltd, (2013) 9 SCC 383 [LNIND 2013 SC 1332] : 2013 (9) JT 92 : 2013 (6) Scale 571 [LNIND 2013 SC 1332]; Chandigarh Housing Board v Avtar Singh, (2010) 10 SCC 194 [LNIND 2010 SC 908].
17 National Seeds Corp Ltd v Madhusudhan Reddy, (2012) 2 SCC 506 [LNIND 2012 SC 43] : 2012 (1) JT 330 : 2012 (1) Scale 367 [LNIND 2012 SC 43].
18 United India Insurance Co Ltd v Leisure Wear Exports Ltd, (2016) 11 SCC 348 [LNIND 2016 SC 261] : AIR 2016 SC 3145 [LNIND 2016 SC 261]: 2016 (7) JT 431 : 2016 (6) Scale 139 : III (2016) CPJ 11 SC.
19 Lourdes Society Snehanjali Girls Hostel v H & R Johnson (India) Ltd, (2016) 8 SCC 286 [LNINDU 2016 SC 224] : AIR 2016 SC 3572 [LNINDU 2016 SC 224]: (2016) 3 CPR 333 (SC).
20 Punjab University v Unit Trust of India, (2015) 2 SCC 669 [LNIND 2014 SC 702] : AIR 2014 SC 3670 [LNIND 2014 SC 702].
21 V Balakrishna Eradi, Consumer Protection Jurisprudence, “Introduction”, 2005, LexisNexis Butterworths; Madan Kumar Singh v District Magistrate, Sultanpur, 2009 9 SCC 79 [LNIND 2009 SC 1642] : 2009 (10) Jt 380 : 2009 (10) Scale 668 [LNIND 2009 SC 1642] : 2008 (4) CPJ 3 : 2009 (4) CPR 113.
22 See note 21above.
23 See note 21 above.
End of Document
[85.054] Who are not consumersHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (2) Consumer Protection ACT, 1986 > A. Consumers
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(2) Consumer Protection ACT, 1986
A. Consumers
[85.054] Who are not consumers
Purchaser of lottery ticket1, beneficiary of treatment in military hospital2, purchaser of goods for commercial purpose3, franchisee holder with telephone department4, unsuccessful bidder in draw of plots5, employee of railways6, tax-payers to the local authorities7, prospective employee8, purchaser of goods for large scale commercial activity9, purchaser of industrial equipment10, purchaser of vehicle for plying as taxi11, student taking exam12, person who avails of free service or under any contract of service13; government servant raising a dispute about service matters14, allottee of plot who cancelled the allotment and took refund with interest15, allottee paying enhanced amount and taking possession of flat16, purchaser of computer software for commercial purposes17, purchaser of existing sites in public auction18, purchaser of truck for livelihood19.
1 SatyawatiGoel v Director, State Lotteries, Govt of Sikkim, (1995) Supp 2 SCC 743 : (1995) 3 CTJ 783.
2 AS Sibia (Retd) v UOI, (2002) 2 CPR 1 : (2002) 3 CPJ 317 (NC).
3 BS Sundara Vadivel Mudaliar & Sons v AP Forest Dept Corp Ltd, (2001) 2 CPC 563 : (2001) 3 CPJ 17 (NC) : (2001) 3 CPR 35; Bihar School Examination Board v Suresh Prasad Sinha, (2009) 8 SCC 683 : 2009 (11) JT 541 : 2010 (1) CLT 255.
4 General Manager, Madras Telephones v R Kannan, (1994) 1 CPC 107 : (1994) 2 CTJ 602 : (1994) 1 CPC 107 : (1994) 1 CPJ 14: UOI v Ramesh Kumar, (1995) 3 CPJ 67 (NC).
5 Ghaziabad Development Authority v CM Pathak, (2001) 1 CPJ 21 : (2001) 1 CPC 424 : (2001) 1 CPR 37 (NC).
6 Kedar Nath Misra v UOI, (1994) 3 CPJ 119 (NC).
7 ASrinivasa Murthy v Chairman, Bangalore Development Authority, (1991) 1 CPR 529 (NC).
8 Steel Authority of India v Malay Kumar Pal, (1997) 1 CPR 85 : (1997) 5 CTJ 104 : (1997) 1 CPC 473 : (1997) 1 CPJ 42 (NC).
Page 2 of 2[85.054] Who are not consumers
9 Madhu Chawla v RK Engineering Co Pvt Ltd, (1995) 3 CPR 449 (NC).
10 Uttar Pradesh State Transport Corp v Non-Destructive Test Appliances Pvt Ltd, Calcutta, (2002) 2 CPR 89 (NC) : (2002) 3 CPJ 263 : (2002) CTJ 255 (NC) : Prestige Stones v Sharma Industries, (1991) 1 CPR 217 (NC) : (1991) CPC 200 (NC); Kailash Chand Jain v General Electric Co of India Ltd, (1991) 1 CPR 286 (NC).
11 Western India State Motors v Sobhag Mal Mena, (1991) 1 CPR 413 (NC) : (1991) CPC 300 : (1991) 1 CPJ 44 (NC).
12 Bihar School Examination Board v Suresh Prasad Sinha, (2009) 8 SCC 483 [LNIND 2009 SC 1773] : 2009 (11) JT 541 : 2010 (1) CLT 255.
13 Bihar School Examination Board v Suresh Prasad Sinha, (2009) 8 SCC 483 [LNIND 2009 SC 1773] : 2009 (11) JT 541 : 2010 (1) CLT 255.
14 JagmitterSainBhagat v Director, Health Services, Haryana, (2013) 10 SCC 136 [LNINDORD 2013 SC 35442] : AIR 2013 SC 3060 [LNINDORD 2013 SC 35442]: 2013 (9) Scale 103 [LNIND 2013 SC 657].
15 Manjul Srivastava v Gover of Uttar Pradesh, (2008) 8 SCC 652 [LNIND 2008 SC 1727] : 2008 (9) JT 584 : 2008 (12) Scale 110 [LNIND 2008 SC 1727].
16 TN Housing Board v Sea Shore Apartments Owners Welfare Association, (2008) 3 SCC 21 [LNIND 2008 SC 40] : AIR 2008 SC 1151 [LNIND 2008 SC 40]: 2008 (1) JT 318 : 2008 (1) Scale 201 [LNIND 2008 SC 40].
17 Birla Technologies Ltd v Neutral Glass And Allied Industries Ltd, (2011) 1 SCC 525 [LNIND 2010 SC 1222] : 2010 (13) JT 524 : 2010 (13) Scale 360 [LNIND 2010 SC 1222].
18 UT Chandigarh Administration v Amarjeet Singh, (2009) 4 SCC 660 [LNIND 2009 SC 588] : AIR 2009 SC 1607 [LNIND 2009 SC 588]: (2009) 2 CPR 97 SC : 2009 2 CPJ 1 SC.
19 Madan Kumar Singh (dead) v District Magistrate, Sultanpur, (2009) 9 SCC 79 [LNIND 2009 SC 1642] : (2009) 4 CPJ 3 SC.
End of Document
[85.055] Meaning of consumer disputeHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (2) Consumer Protection ACT, 1986 > B. Consumer Dispute
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(2) Consumer Protection ACT, 1986
B. Consumer Dispute
[85.055] Meaning of consumer dispute
Consumer dispute means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint1. Disputes relating to deposits for interest2, time-share agreement3, supply of cement to permit holder4, disputes between members and co-operative societies5, are consumer disputes. Repudiation of insurance claim6, challenge to electricity bill7, non-execution of title deed in a housing scheme8, are also consumer disputes.
However, disputes between landlord and tenant9, relating to refusal to grant permits under rice procurement order10, seller and buyer dispute relating to commercial transaction11, purchase and sale simpliciter12, issue of community certificate by RDO13, claim for refund of deposit amount by stockist14, delay in approval of construction plan by municipal council15, non-payment of interest for amounts deposited as security for loans16, tender for works contract17, claim for compensation on account of electrocution of law18, assurance to purchase sugarcane19, mere agreement to purchase goods20, non-allotment of shares in a company21, digging of roads by telephone department22, disputes under section 126 or 135 to 140 of Electricity Act, 200323 will not give rise to consumer disputes.
Consumer Protection Act, 1986 provides for better protection of the interests of consumers and for this purpose it makes provision for the establishment of consumer councils and other authorities for the settlement of consumer disputes and for matters connected therewith. The aforesaid enactment is regarded as the magna carta in the field of consumer protection for checking unfair trade practices and deficiency in goods and services24.
The statement of objects and reasons lays down that the Consumer Protection Act, 1986 must provide speedy and simple redressal of consumer disputes and to give speedy redressal to consumer complaints, the aforesaid enactment provides for a consumer disputes redressal forum in every district, a commission at the state level and the National Commission at the centre and the time limit provided for deciding the complaint or the appeal is:
(1) where the complaint does not require testing or analysis of the commodity, the complaint must be decided within three months from the date of service of notice to the opposite party;
Page 2 of 2[85.055] Meaning of consumer dispute
(2) where the complaint requires testing or analysis of the commodity from the laboratory the complaint will be decided within five months from the date of service of notice on the opposite party; and
(3) the appeal will be disposed of, as far as possible, within a period of 90 days from the date of hearing25.
Consumer Protection Act, 1986 must be given a liberal and literal construction and the court while interpreting the statute must keep in mind the intention of the legislature, that is, better protection of the interests of consumers26.
1 Consumer Protection Act, 1986 section 2(1)(e).
2 Sanjay Kumar Ahuja v Shanta Rani, (2003) 2 CPJ 113 (NC) : (2003) 2 CPR 8 (NC).
3 TV Sundaresan v Sterling Holiday Resort (India) Ltd, (2003) 2 CPC 549 : (2003) 3 CPJ 154.
4 Principal, St Robert’s High School, Hazaribagh v Sone Valley Portland Cement Co Ltd, (1996) 3 CPR 177 : (1997) 1 CPC 125 : (1996) 3 CPJ 81 (NC).
5 Thirumurugan Co-op Agricultural Credit Society v N Lalitha, AIR 2004 SC 448 [LNIND 2003 SC 1076]: (2004) 1 SCC 305 [LNIND 2003 SC 1076].
6 PTDC Ltd v Kirit P Doshi, (1997) 1 CPJ 52 at 56 (NC).
7 Punjab State Electricity Board v Arihant Processors, (2000) 2 CPJ 380 pp 381-382 (Punj).
8 GERWA Gurgoan v Gulmohar Estate Ltd, (1997) 1 CPJ 11 p 13 (NC).
9 Laxmiben Laxmichand Shah v SekarbenKanj Chandan, (2001) 1 CPC 624 : (2001) 1 CPJ 7 (SC).
10 Venkata Kishore Raw Parboiled Rice Mill (Pvt) Ltd v State of Andhra Pradesh, (1995) Supp 1 SCC 303 : (1995) 2 CPC 412.
11 Sakthi Sugars Ltd v Sridhar Sahoo, (1999) 1 CPR 602 : (1999) 2 CPC 4 : (1999) 1 CPR 93 (NC).
12 GS Anandam v EN Dileep, (1997) 1 CPR 99 : (1997) 1 CPC 440 : (1997) 1 CPJ 59 (NC).
13 Revenue Divisional Officer, Madurai v SakkaraiPandi, (1995) 2 CPC 666 : (1995) 3 CPR 351 (NC).
14 Utkal Asbestos Ltd v N Raghava Reddy, (1995) 3 CTJ 588 : (1995) 1 CPC 380 (NC).
15 Hiralal v Administrator Municipal Council Bhiwara, (1994) 1 CPR 709 : (1994) 1 CPC 380 (NC).
16 Twentieth Century Finance Corp Ltd v Civil and Consumer Welfare & General Service Society, (1994) 2 CPR 53 : (1994) 2 CTJ 8.
17 Vinodini Bajpai v Rajya Krishak Utpadan Mandi Parishad, Lucknow, (1992) 1 CPR 10 : (1992) CPC 3 : (1991) 1 CPJ 169 (NC).
18 Haryana State Electricity Board v Gangadevi, (1997) 1 CPC 23 : (1997) 1 CPR 20 : (1996) 3 CPJ 182 (NC).
19 Purna Sahakari Shakar Karkhana Pravheni v Tatya Rao Ram Rao Kate Parveni, (1994) 2 CPJ 107 (NC).
20 MN Narasimha Reddy v Managing Director, MarutiUdyog Ltd, (1991) 1 CPR 168 (NC) : (1991) CPC 440 : (1991) 2 CPJ 346.
21 Usha Rectifier Corp (I) Ltd v RKrishnaswamy, (1995) CPJ 121 (NC).
22 Chief General Manager, Mahanagar Telephone Nigam Ltd v VS Nadkarni, (1992) 2 CPR 121 : (1992) CPC 572 (NC).
23 Uttar Pradesh Power Corp Ltd v Anis Ahmad, (2013) 8 SCC 491 [LNIND 2013 SC 1285] : AIR 2013 SC 2766 [LNIND 2013 SC 1285]: (2013) 3 CPJ 1 [LNIND 2013 UTTAR 9993] (SC) : (2013) 3 CPR 670 (SC).
24 V Balakrishna Eradi, Consumer Protection Jurisprudence, “Introduction”, 2005, LexisNexis Butterworths.
25 See note 24 above.
26 See note 24 above.
End of Document
[85.056] Definition of goodsHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (2) Consumer Protection ACT, 1986 > C. Defect in Goods and Services
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(2) Consumer Protection ACT, 1986
C. Defect in Goods and Services
[85.056] Definition of goods
Goods means goods as defined in the Sale of Goods Act, 19301. “Movable property” will include standing timber, growing crops or grass2 and things attached to or forming part of the land which are agreed to be severed before sale or under a contract of sale3. Actionable claim4 is not goods5 as also money which is a medium of exchange authorised or adopted by government as part of its currency and which is invested or traded as a commodity6. Stock in legal parlance means, (1) a merchant’s goods that are kept for sale or trade; (2) the capital or principal fund raised by a corporation through subscribers’ contributions or the sale of shares; (3) a proportional part of a corporation’s capital represented by the number of equal units (or shares) owned and granting the holder the right to participate in the company’s general management and to share in its net profits or earnings7.
Share is one of the definite numbers of equal parts into which the capital stock of a corporation or joint stock company is divided and it represents an equity or ownership interest in the corporation or joint stock company8. Securities as defined under the Securities Contracts (Regulation) Act, 19569, import licence saleable in market and lottery tickets are covered by the term “goods”10, computer software11
1 Sale of Goods Act section 2(1)(i). Goods is defined in the Sale of Goods Act section 2(7) as every kind of movable property other than 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 served before sale or under the contract of sale.
2 See the Transfer of Property Act, 1882 section 3.
3 State of Madhya Pradesh v Orient Paper Mills Ltd, AIR 1977 SC 687 [LNIND 1976 SC 446]: (1977) 2 SCC 77 [LNIND 1976 SC 446] : (1997) 40 STC 603; Ram Narain Mahto v State of Madhya Pradesh, (1970) 1 SCC 25 [LNIND 1969 SC 342]; State of Maharashtra v Champalal Kishanlal Mehta, AIR 1971 SC 908 [LNIND 1970 SC 142]: (1970) 1 SCC 611 [LNIND 1970 SC 142] : (1971) 27 STC 116; State of Orissa v Titagur Paper Mills Ltd, AIR 1985 SC 1293 [LNIND 1985 SC 400]: (1985) Supp SCC 280 : (1985) 60 STC 213 [LNIND 1985 SC 400].
Page 2 of 2[85.056] Definition of goods
4 See the Transfer of Property Act, 1882 section 3.
A claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the civil courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent.
5 Sale of Goods Act, 1930 section 2(7).
6 Black’s Law Dictionary, 3rd Pocket Edn, 2006 p 464.
7 Black’s Law Dictionary, 3rd Pocket Edn, 2006 p 679.
8 Black’s Law Dictionary, 3rd Pocket Edn, 2006 p 654.
9 le under the Securities Contracts (Regulation) Act, 1956 clause (h).
10 H Anraj v Govt of Tamil Nadu, AIR 1986 SC 63 [LNIND 1985 SC 319]: (1986) 1 SCC 414 [LNIND 1985 SC 319] : (1986) 61 STC 165 [LNIND 1985 SC 319] :, (1986) Tax LR 2217; Vikas Sales Corp v Commissioner of Commercial Taxes, AIR 1996 SC 2082 [LNIND 1996 SC 2467]: (1996) 4 SCC 433 [LNIND 1996 SC 2467].
11 Birla Technologies Ltd v Neutral Glass and Allied Industries Ltd, (2011) 1 SCC 525 [LNIND 2010 SC 1222] : 2011 (1) CPR 1 SC : 2011 (1) CPJ 1 SC.
End of Document
[85.057] Meaning of defectHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (2) Consumer Protection ACT, 1986 > C. Defect in Goods and Services
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(2) Consumer Protection ACT, 1986
C. Defect in Goods and Services
[85.057] Meaning of defect
The complaint may allege that the goods bought by a person or agreed to be bought by him suffer from one or more defects1.
“Defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract2, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods3. The complaint4 may also allege that the services hired or availed of or agreed to be hired or hired by him suffer from deficiency in any respect5. The complaint may allege that a trader or the 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:
(1) fixed by or under any law for the time being in force;
(2) displayed on the goods or any package containing such goods;
(3) displayed on the price list exhibited by him by or under any law for the time being in force;
(4) agreed between the parties6.
The complaint may be in respect of goods which will be hazardous to life and safeties when used are being offered for sale to the public:
(a) in contravention of any 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) if the trader may have known with due diligence that the goods so offered are unsafe to the public7 as also in respect of 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 might have known with due diligence to be injurious to life and safety8. The above indicated complaints are for obtaining any relief provided by or under the Consumer Protection Act, 19869. Even if cause of action arose prior to coming into force of the
Page 2 of 2[85.057] Meaning of defect
Consumer Protection Act, 1986, the complaint would be maintainable10 provided the cause of action had not become time-barred under the law of limitation11. There may be no fresh complaint on the same cause of action12. Consumer Protection Act, 1986 and the machinery thereunder may not be effectively utilised for determining complicated questions of fraud and cheating13.
The definition of “defect” was intended by the legislature to be cast in the widest term and consequently has to be liberally construed14. Significant are the two aspects regarding the quality, quantity, potency, purity or standard mentioned in the definition (i) firstly, the same must either be required to be maintained by any law or rules for the time being in force; (ii) secondly, where there is no such statutory mandate, then in the alternative, these requirements are to be tested on the anvil of what is claimed by the trader in any manner whatsoever in relation to any goods. This means that such claims may either be expressed or implied and these two distinct aspects have to be kept in mind. The definition of “defect” with regard to the standard required to be maintained by law or in the alternative as claimed by the trader expressly or impliedly in any manner whatsoever are to be read disjunctively15.
1 Consumer Protection Act, 1986 section 2(1)(c)(ii).
2 As to meaning of contract see CONTRACT [95.003].
3 Consumer Protection Act, 1986 section 2(1)(f).
4 As to the meaning of “complaint” see [85.047].
5 Consumer Protection Act, 1986 section 2(1)(c)(iii).
6 Consumer Protection Act, 1986 section 2(1)(c)(iv).
7 Consumer Protection Act, 1986 section 2(1)(c)(v); Madhuri Govilkar v Hindustan Petroleum IV, (2006) CPJ 338 NC
8 Consumer Protection Act, 1986 section 2(1)(c)(vi).
9 Consumer Protection Act, 1986 section 2(1)(c).
10 Ram Kali v Delhi Administration (1991), 1 CPJ 309 (315) : (1991) CPC 321 (Del).
11 TP Dobbal v Chairman, Uttar Pradesh State Electricity Board, (1991) 2 CPR 11.
12 Nishi Harishchandra Tripathi v PL Tiwari, (2001) 1 CPJ 5 (NC).
13 N Shivaji Rao v Daman Motor Co, (1993) 1 CPJ 88 : (1993) CCJ 693 (NC).
14 JD Sharma v MarutiUdyog Ltd, (1991) 1 CPJ 126; CBS Property Development Pvt Ltd v District Consumer Disputes Redressal Forum, 1998 (1) Mad LJ 312 : (2000) 102 Comp Cases 266.
15 RNA Agencies Pvt Ltd v Ranbir, (1981) 1 CLT 316 (Har).
End of Document
[85.058] Instances of complaints due to defectHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (2) Consumer Protection ACT, 1986 > C. Defect in Goods and Services
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(2) Consumer Protection ACT, 1986
C. Defect in Goods and Services
[85.058] Instances of complaints due to defect
Complaints1 may relate to deficiency in service or defects in the goods supplied as the case may be by the airlines2, banks3, builders4, carriers5, couriers6, chit funds7, educational institutions8, electricity department9, finance companies10, gas connection services11, housing12, hire purchase financiers13, insurance services14, medical services15, postal and telegraph services16, railway services17, telephones18, Unit Trust of India19 and the like.
The following instances will form the subject of complaints under the Consumer Protection Act, 1986. Sale of defective air conditioner20, car21, cement22, computer23, conversion kit24, cooler25, electricity meter26, elevator27, fridge28, furniture29, generator set30, gold ornaments31, incinerator32, instrumentation controllers33, lathe machine34, LPG cylinder35, machinery36, marbles37, medicine38, oil expeller39, EPABX system40, pesticides41, pressure cooker42, printing machine43, seeds44, sewing machine45, soft drinks46, television set47, tape recorder48, teleprinter49, tractor50, ultrasonic cleaning system51, washing machine52, watch53 weigh bridge54, xerox machine55.
1 As to the meaning of “complaint” see [85.047].
2 Antonio Joao Fernandes v Flight in Charges, Jet Airways, (2004) 2 CPJ 522; GargiParsai v KLM Royal Dutch Airlines, (2003) CTJ 673 : (2003) 2 CPC 40 : (2003) 2 CPR 1 (NC); Air India v Kishore, (2003) 3 CPJ 40 : (2003) 2 CPR 69 (NC); Mohinderjit Singh Sethi v Indian Airlines, (2003) 2 CPJ 205 : (2003) 1 CPR 89 (NC); Rajinder Pal Jawca (NRI) v Secretary, UOI, (2003) 1 CPJ 24 : (2003) 1 CPR 35 (NC); Chandi Prasad Bhatt v British Airways, (2003) 1 CPJ 169 : (2003) 1 CPR 347; Common Cause v Indian Airlines, (1991) 1 CPR 463 : (1992) 1 CPJ 54 (NC); Consumer Education & Research Society, Ahmedabad v Indian Airlines Corp, New Delhi, (1992) 1 CPJ 38 : (1992) CPC 54 : (1991) 2 CPR 440 (NC).
3 AnjanaKundu v Branch Manager, Bank of Baroda, RP No 1044 of 2002 dated 23-4-2002 (NC); Standard Chartered Grindlays Bank Ltd, Karnal v State Bank of India, Karnal, F A No 63 of 2001 dated 13-2-2001; CCI Chambers Co-op Housing Society Ltd v Development Bank Ltd, AIR 2004 SC 184 [LNIND 2003 SC 725]: (2003) 7 SCC 233 [LNIND
Page 2 of 5[85.058] Instances of complaints due to defect
2003 SC 725] : (2003) 117 Com Cas 118 : (2003) 3 CPJ 9; BOI v Shyama Devi, AIR 1978 SC 1263 [LNIND 1978 SC 155]: (1978) 3 SCC 399 [LNIND 1978 SC 155] : [1978] 3 SCR 1009 [LNIND 1978 SC 155] : (1979) ACJ 22; Satna Syndicate Banker v Central Bank of India, (1993) 2 CPJ 154 : (1993) 2 CPR 96 : (1993) CPC 691 (NC).
4 Builders K Saksena v Ghaziabad Development Authority, (1995) 3 CPR 207 (NC); Sanjaynagar Residents Welfare Association v Vice Chairman, Ghaziabad Development Authority, (1995) 1 CPR 632 : (1995) 2 CPC 441 : (1995) 2 CPJ 58 (NC); Sushila Devi v Raj Sudha Towers Pvt Ltd, (1991) 1 CPJ 620 : (1991) 2 CPR 477 : (1991) 2 CPJ 197 (Del); Bhatia Sehgal Construction Corp v AS Films, (1994) 2 CTJ 336 : (1994) 1 CPC 118 : (1993) 3 CPJ 360 (NC); Consumer Protection Council Rourkela v Rourkela Development Authority, (2004) 3 CPJ 13 (NC); Faqir Chand Gulati v Uppal Agencies Pvt Ltd, (2008) 10 SCC 345 [LNIND 2008 SC 1369] : 2008 (7) JT 552 : 2008 (4) CPR 449,
5 Patel Roadways Ltd v Birla Yamaha Ltd, AIR 2000 SC 1461 [LNIND 2000 SC 522]: (2000) 4 SCC 91 [LNIND 2000 SC 522] : (2000) 2 CPR 35 (SC); Economic Transport Organisation v Dharwad Distt Khadi Gramodyog Sangh, AIR 2000 SC 1635 [LNIND 2000 SC 566]: (2000) 5 SCC 78 [LNIND 2000 SC 566] : (2000) 1 CPJ 41 [LNIND 2000 SC 566] : (2000) 2 CPR 33 (SC); Girish Chander v American Consolidation Services Ltd, (2004) 2 CPJ 5 (NC); Nath Bros Exim International Ltd v Best Roadways Ltd, AIR 2000 SCW 2116 : (2000) 4 SCC 553 [LNIND 2000 SC 518] : (2000) 1 CPJ 25; Prakash Road Lines Ltd v RS Chandy, (2004) 3 CPJ 10 (NC); Jaypee Exports v Evergreen Marine Corp, (2004) 3 CPJ 54; South Eastern Carriers Ltd v B Rajendra, (2002) 3 CPJ 153 : (2002) 2 CPJ 25 : (2002) 3 CPR 283 (NC); Kedar Das v Jalaj Motor Transport Co, (2000) 3 CPJ 11 : (2001) 1 CPR 142 (NC); Roadwings International v Hindustan Copper Ltd, (1998) 2 CPC 421 : (1998) 2 CPJ 37 : (1998) 2 CPJ 11 (NC); Victory Transport Pvt Ltd v Mishra Furniture Mart, (1996) 2 CPC 594 : (1996) 3 CPR 54 (NC).
6 Osuri Devendra Panicker v Desk to Desk Courier, (2003) 3 CPR 25 : (2003) 3 CPJ 160; Skypak Couriers Pvt Ltd v MS Anupama Baga, (1991) CPC 191 : (1991) 1 CPR 362 (NC); Airpak Couriers (India) Pvt Ltd v S Suresh, (1993) 1 CTJ 304 : (1994) 1 CPJ 52 (NC).
7 Chit Funds Kovilakam Chits & Financial Service Ltd v KL Benny, (2003) 2 CPC 590 : (2003) 3 CPJ 87 (NC); Allakkal Trust Triprayer v KTR Chandran, (2003) 1 CPC 24 : (2002) 3 CPR 178 (NC); Narinder Kumar v Sanjiv Kumar, (2001) 2 CPC 572 : (2001) 3 CPJ 27 (NC); V Sethuraman v Shri Kalyani Chits & Finance, (1993) 2 CPR 665.
8 Sreedharan Nair N v Registrar, University of Kerala, (2001) 3 CPR 27 (NC); S Somasundaram v Correspondent, Shri Chakravarthy International Matriculation Academy, (2002) 1 CPJ 5 : (2001) 3 CPR 60 (NC); BhupeshKhurana v Viswa Buddha Parishad, (2001) 2 CPJ 74 : (2000) 3 CPR 49 (NC); Vice Chancellor, Punjab University, Patiala v Ashutosh, (2003) 1 CPJ 17 (NC); Bangalore Water Supply and Sewerage Board v Rajappa, AIR 1978 SC 548 [LNIND 1978 SC 127]: (1978) 2 SCC 213 [LNIND 1978 SC 70] : [1978] 3 SCR 207 [LNIND 1978 SC 70]; Director, LBS Centre for Science & Technology v Vinod Kumar, (2001) 3 CPJ 15 (NC).
9 Electricity Punjab State Electricity Board v Zora Singh, (2003) 3 CPJ 169 : (2003) 3 CPR 21 (NC); Shree Kumar Textiles Pvt Ltd v Tamil Nadu Electricity Board, (2004) 3 CPJ 23 (NC); Haryana State Electricity Board v Anand Medicos, (2003) 3 CPJ 175 : (2003) 3 CPR 38 (NC); Faquir Chand v SDO (OP) Sub Division HVPN, (2003) 1 CPJ 260 (NC); SDO Haryana State Electricity Board v Amriti Singh, (2001) 3 CPR 68 (NC); Haryana State Electricity Board v Naresh Kumar, (1996) 1 CPJ 306 : (1996) 2 CPC 79 : (1996) 2 CPR 47 (NC); Consumer Protection Council v Ahmedabad Electricity Co Ltd, (1991) 1 CPR 2 (3) : (1992) 1 CPJ 53 (NC).
10 Ashok Leyland Finance Ltd v Krishna Yadav, (2004) 3 CPJ 15 (NC) : (2004) 2 CPR 44; Electrolux Ltd v Haryana State Agency, (2005) 1 CPJ 59 (NC); Lloyds Finance Ltd v Senior Wire Products, RP No 1352 of 2002 decided on 30 January 2002; Probir R Ghosh v Yule Financing & Leasing Co Ltd, (2004) 1 CPR 52 (NC); Unit Trust of India v Sri Shankar Das, FA No 465 of 1995 dated 19-5-1995; Consumer & Human Rights Forum v Kotak Mohindra Finance Ltd, (2004) 1 CPC 475; Indfund Management Ltd v Shakuntala Brij Mohan, (2003) 2 CPR 107 (NC); Sanjay Kumar Ahuja v Shanta Rani, (2003) CTJ 366 : (2003) 2 CPR 8 : (2003) 2 CPJ 113 (NC); K Kasi Annapurna v Vemuri Bharthi, (1996) 4 CTJ 306 : (1995) 3 CPR 533 (NC).
11 Indian Oil Corp v Consumer Protection Council, Kerala, (1994) 1 SCC 397 : (1993) 1 CTJ 1025 : (1994) 2 CPJ 21 (SC) : (1994) 1 CLC 146 : (1994) 79 CC 577 : (1994) 1 CPR 255 (SC); Flame Gas Service Co v Aklesh Kumar Bansal, (1995) 1 CPR 318 : (1995) 3 CTJ 507 : (1995) 1 CPC 335 : (1995) 1 CPJ 78 (NC); Arjun Singh v Thaneshwar Gas Agency, (2002) 3 CPJ 270 (NC); Indian Oil Corp Ltd v Venkataraman, (1993) 1 CTJ 4 (NC) : (1993) CPC 159 : (1993) 2 CPJ 218 (NC); Indian Oil Corp Ltd v LS Lalitha, (1992) CPC 236 : (1992) 2 CPR 547 : (1992) 1 CPJ 269.
12 Chief Adminitrator HUDA v Shakuntla Devi, (2017) 2 SCC 301 [LNINDU 2016 SC 436] : AIR 2017 SC 70 [LNINDU 2016 SC 436]: (2017) 1 CPJ 3 (SC); 2016 8 SCC 429 [LNIND 2016 SC 684] : AIR 2016 SC 3488 [LNIND 2016 SC 684]: (2016) 3 CPR 323 (SC); Haryana Urban Development Authority v Shanti Devi, (2005) 9 SCC 527 [LNIND 2004 SC 984] : (2005) 1 CPJ 6 (SC); Ghaziabad Development Authority v Rajesh Chandra, (2005) 9 SCC 562 [LNIND 2004 SC 1004] : (2005) 1 CPJ 19 (SC); Haryana Urban Development Authority v Saurabh Aggarwal, (2005) 9 SCC 549 [LNIND 2004 SC 980] : (2005) 1 CPJ 9 (SC); Pablo Bartholomew v Trilok Nath Makkar, (1995) 2 CPJ 45 (NC); Haryana Urban Development Authority through Executive Officer HUDA Gurgaon v RP Chawla, (2002) 1 CPC 369 : (2002) CTJ 238 : (2001) 3 CPR 151 (NC); Patel Constructions Co v Mohammed Amajaddullah, (2003) 3 CPJ 29 (NC) : (2003) 2 CPC 559; Lodha Estate Pvt Ltd v Urmila Uday Kamath, (2005) 1 CPJ 101 (NC); Rajasthan Housing Board v Veer Singh Mehta, (1997) 1 CPR 115 : (1997) 1 CPJ 66 : (1997) 1 CPC 412 : (1997) 5 CTJ 385; Haryana Urban Development Authority v Darsh Kumar, (2004) 3 CPR 93 (SC); Pushpa Pathania v Rajasthan Housing Board, (1995) 1 CPR 239; GDA v Yashpal Singh Chhabra, (2003) 1 CPC 626 : (2003) 1 CPJ 165 : (2003) 1 CPR 338 (NC); Haryana
Page 3 of 5[85.058] Instances of complaints due to defect
Urban Development Authority v Rekha Sharma, (2004) 3 CPJ 31 (SC); Vijai Shankar Shukla v Lucknow Development Authority, (1996) 3 CPR 82 (NC); Leelavati v Sukhmal Jain, (2003) 2 CPC 73 : (2003) 3 CPJ 90 : (2003) CTJ 984 : (2003) 2 CPC 43 (NC); PV Asha Bai v KNW Builders, (1997) 1 CPR 153 : (1997) I CPC 655 : (1997) 1 CPJ 630 (NC); Srichand K Bajaj v SMN Consumer Protection Council, (1995) 2 CPC 98 : (1995) 2 CPJ 82 (NC) : (1995) 1 CPR 769 (NC); GDA v Laxmi Narayan Tyagi, (2003) 1 CPR 43 (NC); HP Housing Board v Varinder Kumar Garg, (2004) 3 CPR 81 (SC); Housing Board, Haryana v Satpal Jodha, (2005) 1 74 (NC).
13 Hindustan Motor Finance Corp Ltd v Oriental Insurance Co Ltd, (1997) 1 CPR 552; Manager, St Mary’s Hire Purchae (Pvt) Ltd v NA Jose, (1995) 3 CPJ 58; S Gnanasekharan v Chairman, National Small Industries Corp Ltd, (1993) 2 CPR 353; Srinivasa Automobiles Ltd v CH Surya Rao, (2000) 1 CPJ 458 (AP); MadhuBala v Renuka Leasing Co, (1992) 1 CPJ 172 (Del).
14 National Insurance Co Ltd v Sardar Gurmit Singh, (2004) 3 CPJ 46 (NC) : (2004) 2 CPR 38; New India Assurance v Bharat Watch Co Ltd, (1996) 3 CPR 171 : (1996) 2 CPC 669 (NC); New India Assurance Co Ltd v SK Pruthi, (1994) 3 CPR 105 : (1994) 3 CPJ 5 (NC); Delhi Electricity Supply Undertaking v Basanti Devi, AIR 2000 SC 43 [LNIND 1999 SC 873]: (1999) 8 SCC 229 [LNIND 1999 SC 873] : (1999) 3 CPJ 15 [LNIND 1999 SC 873] : (1993) 2 CPR 208 : (2000) 1 CPC 42; Central Bank of India v Heera Soni, (2004) 3 CPR 165 (NC); Executive Engineer Environmental Engineering (Cons) Division v Life Insurance Corp of India, (1999) 1 CPR 84 (NC) : (1999) 1 CPC 589 : (1999) 1 CPJ 74; Eiman Krishna Bose v United India Insurance Co Ltd, (2001) 2 CPC 427 : (2001) 2 CPR 111 (SC); National Insurance Co v Lalachan Jain & Sons, (1997) 1 CPR 108 : (1997) 1 CPC 4562 (NC); New India Assurance Co Ltd v Purushotham Gokuldas Match Co, (1995) 1 CPR 843 (NC); Padmasri Tobacco Co v New India Assurance Co Ltd, (2003) 2 CPC 231 : (2003) 1 CPR 172 : (2002) 2 CPJ 96 [LNIND 2002 NCDRC 135] (NC); National Insurance Co v Phunnu Rai, (2003) 1 CPJ 208 (NC); National Insurance Co v Kanchan Medicare & Research Centre Pvt Ltd, (2003) 2 CPC 594 : (2003) 3 CPJ 83 (NC); Jaswinder Singh v New India Assurance Co Ltd, (2005) 1 CPJ 56 (NC); AR Geeta v Oriental Insurance Co Ltd, (2001) 2 CPC 671 : (2001) 3 CPR 39 (NC); PMG Haryana Circle v Naraini Devi, (2001) 3 CPR 188 (NC); National Insurance Co Ltd v Chandrappa Veerappa Karadagi, (2001) 3 CPR 191 : (2002) 1 CPC 209 (NC); National Insurance Co Ltd v Safari Industries (India) Ltd, (1998) 1 CTJ 313 : (1998) 1 CPJ 33 (NC); LIC v PS Agarwal, (2004) 3 CPR 152 (NC); Sri Swastik Trading Co v Oriental Insurance Co Ltd, (2005) 1 CPJ 36 (NC); B Jayamma v Sr Branch Manager, LIC (2004) 3 CPJ 59; Sri Devi Amma v L I C of India, (2005) 1 CPJ 77 (NC), Metal Power Co Ltd v Oriental Insurance Co Ltd, (2014) 5 SCC 771 [LNINDU 2014 SC 6] : IV (2014) CPJ 9 SC.
15 LaxmanBalakrishna Joshi v Trimbak Bapu Godbole, AIR 1969 SC 128 [LNIND 1968 SC 147]: (1969) 2 SCC 128 [LNIND 1969 SC 160] : (1969) Lab IC 1547; Bolam v Friern Hospital Management Committee, [1975] 2 All ER 118; Indian Medical Association v VP Shantha, AIR 1996 SC 550 [LNIND 1995 SC 1110]: (1995) 6 SCC 651 [LNIND 1995 SC 1110] (NC) : (1995) 3 CPR 412; State of Haryana v Santra, AIR 2000 SC 1888 [LNIND 2000 SC 700]: (2000) 5 SCC 182 [LNIND 2000 SC 700] : (2000) 1 CPJ 53; Poonam Verma v Ashwini Patel, (1996) 3 CPR 205 : (1996) 4 CTJ 465 (SC); Shefali Bhargava v Indraprastha Apollo Hospital, (2003) 1 CPJ 216 : (2003) 3 CPR 58 (NC); Kaligoundan v N Thangamuthu, (2004) 3 CPJ 29; Meenakshi Mission Hospital and Reasearch Centre v Samuraj, (2005) 1 CPJ 33 (NC); DD Trikha v Devinder Mahant, (2002) 2 CPJ 116 (NC); Vijay HI Mankar v Mangal Bassod, (2000) 1 CPJ 37 (NC); V Kishan Rao v Nikhil Super Speaciality Hospital, (2010) 5 SCC 513 [LNIND 2010 SC 213].
16 UOI through PMG Agra v Anil Kumar Garg, (2002) 3 CPJ 255 : (2002) 2 CPR 76 (NC); Postmaster, Imphal v Jamini Devi, Sagolland, (2000) 1 CPR 34 : (2001) 1 CPJ 28 (NC); Post Master General v Calvin Jacob, (1994) 2 CPR 707 : (1994) 2 CTJ 676 : (1994) 2 CPC 192 : (1994) 3 CPJ 85 (NC); Post Master, Head Post Office, Rajkot v Jain Enamel Wals, (2004) 3 CPJ 526.
17 PA Narayanan v UOI, AIR 1998 SC 1659 : (1998) 3 SCC 67; General Manager, Southern Railway v A Shameem, (2004) 1 CPJ 40 (NC); South Eastern Railway v Yeshwant Tiwari, (2003) 2 CPR 12 (NC); M Kanthimathi v Govt of India, Ministry of Railways, (2003) 1 CPR 152 : (2003) 1 CPJ 16 (NC); General Manager, Northern Railways v Amarnath Agarwal, (2003) 2 CPJ 54 : (2003) 1 CPR 316 (NC); UOI v KK Shukla, (2002) 1 CPR 77 : (2002) 3 CPJ 191 (NC); Baskar Choudhary v Pramod Kumar Aggarwal, (1998) 2 CPC 314 : (1998) 6 CTJ 651 : (1998) 2 CPR 14 (NC); General Manager, South Eastern Railway v Anand Prasad Sinha, (1991) 1 CPR 145 : (1991) CPC 22 (NC).
18 SB Singh Gurjan v Telecommunication Dept, Jodhpur, (2005) 2 CPJ 6 (NC); Chief General Manager MTNL v Consumer Rights Society, (2003) 1 CPR 61 : (2003) 2 CPC 266 (NC); DSN L v PD Khanduri, (2005) 1 CPJ 74 (NC); UOI v Jagadamba Rice Mills, (1992) 1 CPR 293 (NC); Ajay Dubey v General Manager, Telegraph and Telecommunications, (1995) 1 CPR 777 : (1995) 2 CLT 47 : (1995) 1 CPJ 223 : (1995) 2 CPC 448; Madras Telephones v M Singaravelu, (1992) 2 CPR 87 (NC); Babir Singh v General Manager Telephones, (2002) 3 CPR 242 (NC).
19 Unit Trust of India v Kelki Devi, (2004) 2 CPR 21 (NC); Harish Chandra Pande v DK Goswami Zonal Manager, UTI, (2002) 1 CPR 102 (NC); MM Dastur & Co represented by UTI v Normula Anil Kumar, (2002) 2 CPR 83 (NC); Raghubir Singh v Unit Trust of India, (2002) 3 CPJ 342 (NC).
20 Harmohinder Sing v Anil Sehgal, (1999) 1 CPC 593 : (1992) 2 CPJ8 : (1999) 1 CPR 101 (NC); Yogesh Bai D Shridhar v Consumer Education and Research Society, (2004) 1 CPC 405 : (2004) 1 CPR 28.
21 Swati Automobile Ltd v Satish Chand, (1992) 1 CPR 570 : (1992) 1 CPJ 136 : (1992) CPC 330 (NC); Jose Philip Mampillil v Premier Automobiles Ltd, AIR 2004 SC 1529 [LNIND 2004 SC 111]: (2004) 2 SCC 278 [LNIND 2004 SC 111]; Mahindra & Mahindra Ltd v Mahesh Sukhthamkar, (2004) 3 CPJ 27 (NC); Scooters India Ltd v Madha Bananda
Page 4 of 5[85.058] Instances of complaints due to defect
Mohanty, (2003) LJCP 381; CN Anantharam v FIAT India Ltd, (2011) 1 SCC 460 [LNIND 2010 SC 1134] : AIR 2011 SCC 523 : (2010) 12 Scale 359 [LNIND 2010 SC 1134] : (2010) 4 CPJ 56 SC : (2011) 1 CPR 4 SC.
22 AV Balakrishnan v Karnataka Mineral & Manufacgturing Co Ltd, (1993) 1 CPR 269; VP Pathak v SM Aich, (1997) 1 CPR 35.
23 Plus Computer System Ltd v Kalra Rai & Associates, (1998) 1 CPR 213; Essen Computers Ltd v Jagrat Grahak Sardar Chhatralaya, (1993) 2 CPR 420.
24 MarutiUdyog Ltd v Rajeev Kumar Loomba, (2002) 3 CPR 236 (NC); Manager Mehta Motors v Ramesh Kumar, (2003) 4 CPJ 140 (NC).
25 Shri Bhaskaran v MN Sundaresan, (1998) 1 CPR 27.
26 HD Shourie v Municipal Corp of Delhi, AIR 1987 Del 219 [LNIND 1987 DEL 173]: (1987) 32 DLT 73 [LNIND 1987 DEL 173]; Municipal Corp of Delhi v Dhanraj Jain, (1992) 1 CPJ 262 (263); Delhi Electricity Supply Undertaking v SK Bakshi, (1995) 1 CPR 446 : (1995) 2 CPJ 131; GS Bhgwat v Assistant Executive Engineer, (1994) 1 CPR 880; Gita Rani Chakraborty v Station Supdnt, (1997) 1 CPJ 450.
27 Maurya Enterprises v Kone Elevator India Ltd, (1994) 2 CPJ 99 : (1994) 1 CPR 896 : (1994) 2 CPJ 444.
28 Expo Machinery Ltd v GS Pal, (1996) 2 CPJ 45 : (1996) 2 CPR 247; Allwyn Electrolux v Navin Kumar, (2001) 2 CPJ 208.
29 Satbir Furniture v Lalita Sehgal, (1998) 3 CPR 58; Murray & Co v Sankaralingam, (2002) 1 CPJ 426.
30 Amtrex Ambience Ltd v Alpha Radios, (1996) 1 CPJ 324 (NC); Sajjan Textiles Mills Ltd v Larsen & Toubro Ltd, (1998) 1 CPR 292; Meera & Co Ltd v Chinar Syntex Ltd, (2004) 2 CTJ 24 (NC); AR Distributors Pvt Ltd v Balwant Kaur, RP No 1690 of 2001 dated 12-4-2004.
31 M Bhagwanv Sri Krishna Jewellers, (1992) 1 CPR 469 (AP)).
32 HansrajNayyar v SardarWaryam Singh Memorial Hospital and Nursing Home, (1998) 2 CPR 572.
33 UOI v Infortech India, (1996) 1 CPJ 161 : (1996) 1 CPR 39.
34 C Rajendra v Shimac Machine Tools, (1992) 1 CPR 452.
35 Dayanand A AVasare v Bharat Petroleum Corp Ltd, (1992) 1 CPJ 37 : (1993) 1 CPR 278; Ganga Gas Service v Lalita Sharma, (1999) 2 CPJ 573.
36 Bharat Industrial Complex v Dilip Kumar Ghosh, (1998) 2 CPR 147; Sivani Tailoring Point & Readymade Garments v Negini Enterprises, (1996) 2 CPJ 475 : (1996) 3 CPR 402; Kalimata Plastic Machinery Manufacturers Pvt Ltd v Deepa Plastic Industries, (2003) 2 CPC 82 : (2003) 2 CPR 54 (NC) ).
37 RP Patel v Kanti Lal Hargovandas Shah, (1993) 1 CPR 26.
38 Anup Kumar v SM Kanwar, (1992) 1 CPR 410 : (1993) 1 CPJ 496; Common Cause v Drug Controller of India, (1991) 2 CPJ 698 (NC).
39 R Bhaskara v Rohini Mill Stores, (1994) 3 CPR 56; BhanwarKanwar v RK Gupta, (2013) 4 SCC 252 [LNIND 2013 SC 1126] : 2013 2 CPJ 5 SC
40 State of Rajasthan v Tinkle Bells Enterprises, (1995) 3 CPR 578; Consumer Protection Council v Seshrut Electronics Pvt Ltd, (1992) 2 CPR 159; HCL Ltd v Reji K Verghese, (2001) 1 CPR 537 (Ker) : (2001) 2 CPJ 270.
41 Anitha Agro Centre & Pesticides v N Patabiraman, (1993) 2 CPR 677.
42 TTK Prestige Ltd v Akhil Bharatiya Grahak Panchayat Hindu Dharma Sanskriti Bhavan, (2000) 10 SCC 421 : (1999) 3 CPJ 34.
43 Sanjay VinayakPanth v Chetan Machinery & Paper Mart, (1991) 1 CPJ 5 : (1991) 1 CPR 533; KC Rajeev v Rashtra Deepika Ltd, (1996) 1 CPR 654; Super Engineering Corp v Sanjay Vinayak Pant, (1992) 1 CPR 218 : (1992) 1 CPJ 95.
44 MV Arunachalam v Vellore AnjappaMudaliar, (1995) 1 CPJ 162 : (1994) 1 CPR 253; Laxmi Agriculture Seeds Store v Dhopsingh, (1994) CPJ 184 : (1994) 1 CPR 375; Bejo Seetal Seeds v Bolla Venkanna, (2002) 1 CPC 384 : (2001) 3 CPR 126 (NC); Mahboob Baig v Rayalaseema Seeds Corp, (1996) 1 CPR 257; Namdeo Bajrao Rant v Hindustan Lever Ltd, (1993) 3 CPR 346; Maharashtra Hybrid Seeds Co Ltd v Alavalpatti Chandra Reddy, (1999) 1 CPR 2 SC : (1998) 2 CPC 359 : (1998) 3 CPJ 8 (SC); National Seeds Corp Ltd v Madhusudhan Reddy, (2012) 2 SCC 506 [LNIND 2012 SC 43] : 2012 (1) JT 330 : 2012 (1) Scale 367 [LNIND 2012 SC 43].
45 Indian Sewing Machine Co Ltd v Sanashre Roy, (1993) 2 CPJ 741 : (1993) 1 CPR 691.
46 Narayanan VenkatakrishnaIyengar v Shakti Foods, (1994) 2 CPJ 652 : (1994) 3 CPR 480.
47 R Narasingh Rao v RK Surana, (1996) 3 CPR 354; Poss Associated Hyderabad v Haridarshan, (1991) 1 CPR 530; Manager Meda Enterprises v J Rajagopal Naidu, (1993) 3 CPR 91; Ghumar Electronic v Laxmi Narain, (1993) 2 CPR
Page 5 of 5[85.058] Instances of complaints due to defect
634; Chairman, Konark Television Ltd v PC Sahoo, (2001) 2 CPJ 197; Ashok Kumar Dhanka v Overseas Trade Agency, (1995) 2 CPR 557; Rosemary Chakrapani v Santosh Agency, (1994) 1 CPR 42.
48 K Narasimha Reddy v Instyle, (1993) 2 CPR 29.
49 District Manager, Telephones v TarunBharthua, (1991) 1 CPR 171; UOI v BS Sidha, (1992) 1 CPR 537 (NC) : (1992) CPC 232 (NC) 1 : (1992) CPJ 208 (NC).
50 Shiv Balak Singh v Manager, Escorts Tractor Ltd, (2000) 2 CPJ 335 (UP).
51 Karnataka Crystals Ltd v Vibronics Pvt Ltd, (1997) 1 CPR 120 (Kant).
52 Laxmikant v Satyendranath C Tavakari, (1993) 3 CPJ 1395 : (1993) 2 CPR 605; Voltas Ltd v SP Vij, (2000) 1 CPJ 158 : (2000) 2 CPR 509.
53 Kushal Kumar Das v Titan Industries Ltd, (1998) 1 CPR 616.
54 Ferro Alloys Corp Ltd v Indchem Instrumentation Ltd, (1993) 3 CPR 223.
55 Parshotham Lal v Jaico Computers, (1995) 2 CPR 329; Sales Office System Pvt Ltd v Savita Rani, (1993) 3 CPR 77; IDC Electronics Ltd v Ajara Urban Co-op Bank Ltd (1993) 1 CPR 225 (NC) : (1992) 3 CPJ 57 (NC); HCL Ltd v Mohan Lal Miri, (1999) 2 CPR 279; RR Processing Unit v Chowgole Industries Ltd, (1994) 2 CPJ 312 : (1994) 1 CPR 869; Father Joseph Cherian v Gestetner (I) Ltd, (1993) 2 CPR 468.
End of Document
[85.059] Liability in case of defectHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (2) Consumer Protection ACT, 1986 > C. Defect in Goods and Services
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(2) Consumer Protection ACT, 1986
C. Defect in Goods and Services
[85.059] Liability in case of defect
Where it is a case of manufacturing defect both dealer and manufacturer may be made liable1. However, this is subject to the terms and conditions of appointment of dealer2. Delay in rectification of defects3 may also be compensated4. Defects in goods, vehicle or machines purchased for resale or commercial purpose may not be subject matter of a complaint5. Civil suit filed for a different type of relief may not oust the jurisdiction of the consumer forum6. In cases of complaint of defects in vehicle, expert opinion has to be obtained from government organisation, institution or agencies7. Variation in agro climatic condition may account for the poor performance of seeds and no defect may be attributed to the seller8. Complainant using a defective vehicle and running up several kilometres or using defective machine for a while may be a ground for reducing the compensation amount9. Where it is a case of inherent defect, the consumer is entitled to replacement of the article, goods machinery or vehicle or refund of the price10.
Though the burden to prove the defect would be on the consumer, yet it must be understood that he is not bound to pinpoint the precise nature of the defects. The warranty which is given for a vehicle is a warranty for whole of the vehicle and when it is found that the vehicle does not perform properly the warranty would be taken to have been breached even if no individual part could be identified as defective. It is not always necessary for the consumer to give expert testimony, though if he does so it will add to the weight of the evidence.
However, it must be shown that the use of the vehicle has been substantially impaired on account of the defects11.
Before coming to consumer forum the consumer must give notice both to the dealer and the manufacturer and both of them must be given reasonable opportunity to repair the defect if it is not inherent manufacturing defect. False representation regarding mileage may give cause of action for a complaint12. Forums constituted under the Consumer Protection Act, 1986 have to take a realistic and pragmatic view of matters coming before them while determining the compensation payable13.
Page 2 of 3[85.059] Liability in case of defect
Compensation may be reduced if defects are minor in nature14. Question of manufacturing defect and compensation to be awarded must be done on the basis of evidence adduced or to be adduced by the parties before the consumer forum15. Entire evidence has to be considered before entering a finding16 and the award is to be based on such clear finding17. Equally the question of commercial purpose has to be determined on the basis of the respective versions of the parties and on the basis of evidence18. Where it is a case of improper handling of vehicle responsible for defects, the complainant would not be entitled to relief19. Direction to pay compensation has to be on proof of damage20. Since manufacturing defects may not be found immediately and would be apparent only over a period of time, limitation would start running only after defects become apparent21. For a complaint to succeed there must be proof that damage was caused during the warranty period22 or that it was a manufacturing defect on following due procedure23
1 Jose Philip Mampillil v Premier Automobiles Ltd, AIR 2004 SC 1529 [LNIND 2004 SC 111]: (2004) 2 SCC 278 [LNIND 2004 SC 111]; ARG Distributors Pvt Ltd v Balwant Kaur, RP No 1690 of 2001, decided on 12 April 2004; Panda Motors Pvt Ltd v Tanmayer Kumar Patnaik, CA No 5912 of 2004, decided on 6 September 2004 (SC); Kirloskar Oil Engineers Ltd v M Lokesh, (2003) 2 CPC 223 : (2003) 1 CPR 192 (NC); JNP Agro Systems Pvt Ltd v KK Jose, (2001) 3 CPR 53 (NC); Maruti Udyog Ltd v Susheel Kumar Gabgotra, (2006) 2 CPJ 3 (SC) (obligation of manufacturer/dealer under warranty only to repair or replace any part found to be defective but no replacement of vehicle may be ordered).
2 TV Sundaram Iyengar & Sons Ltd v Muthuswamy Duraiswamy, (2002) 3 CPJ 172.
3 As to the meaning of “defect” see [85.057].
4 Satelec Power Electronic Pvt Ltd v National Research Development Corp of India, (2002) 3 CPJ 124 : (2003) 2 CPC 1 : (2003) 1 CPR 216 (NC).
5 Sri Lakshminarayanan Rice Mill v Food Corp of India, (1995) 3 CPR 630 : (1996) 4 CTJ 512 (NC); Abhinav Publishing India Pvt Ltd v Graphics and Prints, (1995) 2 CPR 6 : (1995) 2 CPJ 117 : (1996) 4 CTJ 115 (NC); Agfa Gevaeart India Ltd v Jitpal X-Ray Pvt Ltd, (1994) 2 CPR 227 : (1994) 2 CTJ 698 (NC); Monarch Photocomp & Printers v Super Engineering Corp, (1992) 2 CPR 415 : (1992) CPC 770 : (1992) 2 CPJ 473 (NC); Kusuman Hotels Pvt Ltd v Neycer India Ltd, (1993) 3 CPR 405 : (1993) 1 CTJ 947 (NC). As to meaning of “complaint” see [85.047].
6 Sat Pal Mohindra v Surindra Timber Stores, (1999) 5 SCC 696 : (1999) 2 CPC 468 : (2000) 1 CPR 78 (SC).
7 Swaraj Mazda Ltd v PK Chakkrappore, (2004) 1 CPR 24 (NC) : (2004) 1 CPC 421 (NC).
8 Ganesh Ram v Prop Kisan Agro Sales, (2004) 3 CPJ 17 (NC) : (2004) CCC 304.
9 Honda Seil Cars India Ltd v Rohit Jain, (NC Rev No. 446/2013 dated 31-3-2016) : 2016 SCC ONLINE NCDRC 1379; Tata Engineering & Locomotive Co Ltd v Gajanan Y Mandrekar, AIR 1997 SC 2774 [LNIND 1997 SC 800]: (1997) 5 SCC 507 [LNIND 1997 SC 800]; Mahindra & Mahindra Ltd v Mahesh Sukthankar, (2004) 3 CPJ 27 (NC); Godrej Photo-ME Ltd v Jaya P Appachu, FA No 723 of 2003 decided on 24 May 2004.
10 Abhaya Kumar Panda v Bajaj Auto Ltd, (1993) CPC 586 : (1993) 1 CTJ 971 : (1992) 1 CPR 246 : (1993) CPC 586 (NC); Hindustan Motors Ltd v Rajendrakumar Ganesh BahiPrajapati, (1993) 3 CPR 274 (NC); Krishnakuamr v Raheja Automobiles, (2002) 1 CPR 214 : (2003) 1 CPJ 69 (NC); Manager Mehta Motors v Ramesh Kumar, (2003) 4 CPJ 140 (NC).
11 Scooters India Ltd v Madha Bananda Mohanty, (2003) LJCP 381.
12 See note 10 above.
13 Ashok Kumar Singh v Gujarat Cycles Ltd, (1993) 2 CPR 304 (NC) : (1992) 2 CPJ 454 : (1992) CPC 642.
14 Rajiv Goel & Co v MM Dutta, (1995) 2 CPJ 75 (NC).
15 Eicher Motors Ltd v Mahendra Nirmal Kumar Nirmal, (2000) 1 CPC 605 : (2000) 1 CPR 89 (NC).
16 Pashupati Singh v Malhotra Engineering Works, (1996) 2 CPC 274 : (1996) 2 CPR 4 (NC).
17 See note 18 above.
18 KS Dabas, Prop of Amazon Consultant Engineers v Rajendra Kumar Chhabra, Prop of Chhabra Nursing Home and Maternity Home, (1997) 2 CPR 16 : (1997) 2 CPC 118 (NC); see also Area Manager, National Seeds Corp Ltd v K Karuppanna Servai, (1995) 3 CPR 587 : (1996) 4 CTJ 509 (NC) (purchase of seeds or tractor for agricultural purposes is not purchase for commercial purpose); Bupendra Jung Bahadur Gurna v Regional Manager, (1995) 2 CPR 173 (NC).
19 Escorts Ltd v NK Dasappa, (1995) 2 CPR 196 : (1995) 2 CPC 151 (NC).
20 Ramesh S Patil v Ajay Agro Agencies, (2002) 3 CPJ 296 (NC).
Page 3 of 3[85.059] Liability in case of defect
21 Managing Director, Kerala Automobiles Ltd v PS Harindra Prakas, (2002) 1 CPC 286 : (2002) 3 CPJ 203 (NC).
22 Tata Motors Ltd v Anurag Sehgal, 2012 SCC ONLINE NCDRC 545 : (2012) NCDRC 545; Sure Marketing Services v Leo D’Souza, (1992) 2 CPJ 364 (NC) : (1992) CPC 417 (NC).
23 Cadbury India Ltd v Kanteppa, (NC Rev No. 1051/2010 dated 3-12-2015) 2015 SCC ONLINE NCDRC 4621.
End of Document
[85.060] What amounts to unfair trade practicesHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (2) Consumer Protection ACT, 1986 > D. Unfair Trade Practices
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(2) Consumer Protection ACT, 1986
D. Unfair Trade Practices
[85.060] What amounts to unfair trade practices
The following illustrative cases show unfair trade practice:
(1) price of free gift covered by increase in price prejudicial to consumer interest1;
(2) misleading advertisement by educational institution2;
(3) allowing investment scheme falling short of prudent assessment and misleading3;
(4) listed establishments refusing discount on guaranteed discounts on intercard;
(5) awarding degree not recognised by University Grants Commission4;
(6) allotment in unapproved scheme5;
(7) building plan not approved6;
(8) cash crop scheme, plots with plantation scheme not taking off7;
(9) not supplying the ordered branded material8;
(10) highly exaggerated claim with regard to mileage9;
(11) intentional delay in delivery after receiving the entire consideration10;
(12) non-refunding of booking amount when the vehicle, machine or computer not supplied11;
(13) non-refunding of FDS, SD12;
(14) increase in price after changing the name of the scheme13;
(15) misrepresentation as to timeframe of scheme14;
(16) misrepresentation as to condition of flat15;
(17) practising as doctor without a degree16;
Page 2 of 3[85.060] What amounts to unfair trade practices
(18) forfeiture of deposit money not mentioned in the agreement17;
(19) delayed refund of deposit for scheme found unsuccessful18;
(20) supplying outdated medicine19;
(21) shortfall in carpet area20;
(22) promised professional or technical training not given21;
(23) irregularity in the release of gas connection and supply of refill cylinder22;
(24) disconnection of mobile phone23;
(25) coercive methods to repossess vehicle24;
(26) allotment letter sent to wrong address though the new address has been notified25;
(27) repudiation of claim on technical ground26;
(28) supply of defective fax machine27.
(29) overcharging for catalytic converter neither demanded nor fitted in the car28
(30) making a false representation that the goods are of a particular standard, quality and composition29
1 AlexanderPrabhu v Reckitt & Coleman of India Ltd, (2001) 2 CPJ 44 : (2001) 3 CPR 1 (MRTPC).
2 In the matter of Institute of Public Health and Hygiene, (1998) 2 CPR 26, Buddhist Mission Dental College and Hospital v Bhupesh Khurana, (2009) 4 SCC 473 [LNIND 2009 SC 347] : 2009 (2) JT 377.
3 Director General (I&R) v Desert Gold India Irrigation Ltd, (1998) 1 CPR 31 (MRTP).
4 Director General (I&R) v RM Institute of Hotel Management, New Delhi, (1998) 1 CPR 1 (MRTPC).
5 Om Prakash Kamal v Scheduled Caste and Scheduled Tribe Backward and Minorities Co-op Housing Society Ltd, (2003) 2 CPR 25 (MRTPC) : (2003) 1 CPJ 122.
6 TejKishen Raina v Technology parks Ltd, 1998 (3) CPR 31 : (1998) 6 CTJ 342 (MRTPC).
7 A Prabhu v Green Country Agro Foods Ltd, (2002) 3 CPR 16 (MRTPC) : (2002) 2 CPJ 50; Anil Kumar Adya v Maxworth Orchards (I) Ltd, (2003) 1 CPR 33 : (2003) 1 CPJ 28 (MRTPC).
8 Giriraj Studio v Koron Business Systems Ltd, RP No 2419 of 2002 dated 5-9-2002 (NC).
9 MR Ramesh v Prakash Moped House, 2003 LJCP 601.
10 Om Prakash v Assistant Engineer, Haryana Agro Industries Corp Ltd, (Civil Appeal No 373 of 1994 decided on 12 April 1994); Sat Pal Bakshi v Technology Parks Ltd, (2000) 1 CPR 37 : (1999) 3 CPJ 38 (MRTPC); P Ghei v Chairman Ghaziabad Development Authority, (2002) 3 CPR 9 : (2002) 2 CPJ 33 (MRTPC); Meena Balan v Maxworth Homes Ltd, (2002) 3 CPR 22 : (2002) 2 CPJ 52 (MRTPC); SK Bansal v Meerut Development Authority, (2002) 2 CPJ 14 : (2002) 2 CPR 25 (MRTPC).
11 Deepak Sinha v Pal Peugeot Ltd, (2001) 1 CPR 29 : (2000) 3 CPJ 38; T Raghavan v Pal Peugeot Ltd, (1999) 2 CPJ 61 : (2000) 1 CPR 14; JR Midha v Premier Automobiles Ltd, (2000) 3 CPR 1 : (2000) 1 CPJ 36 (MRTPC); RK Sanghi v Premier Automobiles Ltd, (2002) 2 CPJ 93 : (2000) 3 CPR 66 (MRTPC); KB Lal Mathur v Andhra Pradesh Scooter Ltd, (2000) 1 CPR 46 : (1999) 3 CPJ 33 (MRTPC); AlokHanuray v Technology Parks Ltd, (2000) 1 CPJ 4 : (2000) 2 CPR 1 (MRTPC); Rashmi Kanta Sharma v PS Sabharwal, (2000) 1 CPJ 20 : (2000) 2 CPR 7 (MRTPC); SuchitraSurel v Technology Parks, (2000) 2 CPR 5 : (2000) 1 CPJ 6; Sunil Kumar Arora v MaitreyaDoshi, (2000) 1 CPJ 11 : (2000) 2 CPR 35 (MRTP); AK Kochar v Pertech Computers, (2002) 2 CPR 45 : (2001) 3 CPJ 98 (MRTPC); Koa Tools India Ltd v Dean Marketing Services Pvt Ltd, (1998) 1 CPR 51 (MRTPC); Veer Vardhaman Textile Mills Ltd v Loyal Engineering Ltd, (2003) 1 CPR 19 : (2003) 1 CPJ 41 (MRTPC).
12 Joy Ibrahim v Saibiotech Ltd, (2001) 3 CPR 33 : (2001) 2 CPJ 61 (MRTPC); Himanshu Rathor v Anil Jain, (2003) 2 CPR 1 : (2003) 1 CPJ 67 (MRTPC); Harishankar v Chamba Dist Fruit Growers Co-op Industrial Society Ltd, (2000) 3 CPJ 48 : (2001) 1 CPR 13 (MRTPC).
13 Renu Gupta v GDA, (2000) 2 CPJ 69 : (2001) 1 CPR 1 (MRTPC).
14 Dhirendra Vir Rastogi v Maxworth Orchards (I) Ltd, (2001) 1 CPR 44 : (2001) 1 CPJ 9 (MRTPC).
15 SC Gadihoke v Meeru Development Authority, (2001) 3 CPR 28 : (2001) 2 CPJ 50 (MRTPC).
Page 3 of 3[85.060] What amounts to unfair trade practices
16 Baleshwar Prasad v Firtu Das Mahant, RP No 194 of 2003 dated 2-4-2003 (NC).
17 Kamal Kishore Sharma v Ocean Impex Ltd, (1999) 2 CPJ 63 : (2000) 1 CPR 20 (MRTPC); Vinay Kumar Bhatnagar v Uttar Pradesh State Industrial Development Corp Ltd, (2002) 3 CPR 35 : (2002) 2 CPJ 32 (MRTPC).
18 Rita Malhotra v Indian Afforestery Services, (2000) 2 CPR 39 : (2000) 1 CPJ 10 (MRTPC).
19 Haji Nasiruddin v Prem Pharmaceuticals, (2003) 2 CPR 7 : (2003) 1 CPJ 167 (MRTPC).
20 BM Kapoor v Ajay Enterprises, (2002) 1 CPR 1 : (2001) 3 CPJ 71 (MRTPC).
21 Director General (Investigation & Registration) v Uptron India Ltd, (2003) 2 CPR 3 : (2003) 1 CPJ 154 (MRTPC).
22 Pritam Chand Dogra v Baldev Rana, (2001) 2 CPR 24 : (2001) 1 CPJ 50 (MRTPC); Director General (I&R) v Jyotika Gas and Domestic Appliances, Nagpur, (1998) 3 CPR 22 (MRTPC).
23 Giriraj Kumar v Aircel Digilink India Ltd, (2001) 3 CPR 41 : (2001) 3 CPJ 23 (MRTPC).
24 Jawaharlal Jain v Citibank NA, (2001) 3 CPR 61 (MRTPC).
25 ShakuntalaKather v DDA, (1999) 1 CPR 53 : (1999) 1 CPJ 20 (MRTPC); Bhimsen v Delhi Development Authority, (2003) 1 CPJ 124 : (2003) 2 CPR 22 (MRTPC).
26 Ashok Kumar Goel v United India Insurance Co Ltd, (2000) 3 CPR 40 : (2000) 2 CPJ 48 (MRTPC).
27 Manish Lalwani v ICNET Ltd, (1999) 2 CPJ 72 : (2000) 1 CPR 15 (MRTPC).
28 Maruti Suzuki India Ltd v Rajiv Kumar Loomba, (2009) 15 SCC 195 [LNINDORD 2009 SC 529] : 2009 (9) JT 406 : 2009 (9) Scale 549 : (2009) 4 CPR 24.
29 Colgate-Palmolive (India) Ltd v Anchor Health and Beauty Care Pvt Ltd, 2008 SCC Online Mad 627 : 2008 4 CTC 675 : (2008) 4 LW 628.
End of Document
[85.061] Proof of unfair trade practiceHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (2) Consumer Protection ACT, 1986 > D. Unfair Trade Practices
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(2) Consumer Protection ACT, 1986
D. Unfair Trade Practices
[85.061] Proof of unfair trade practice
Sufficient evidence must be led to prove that the material supplied did not meet the standards promised1 and that the popular soft drink bottles contained insects and dirt as a result of negligence in manufacturing of the same on the part of the manufacturer by offering those bottles for inspection by government or independent laboratory2.
1 Romesh Sharma v Regional Polymers, (1999) 3 CPR 41 : (1999) 2 CPJ 92 (MRTPC).
2 Director General (I&R) v Haryana Drinks Pvt Ltd, (2002) 2 CPR 21 : (2002) 1 CPJ 23 (MRTPC).
End of Document
[85.062] What does not amount to unfair trade practiceHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (2) Consumer Protection ACT, 1986 > D. Unfair Trade Practices
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(2) Consumer Protection ACT, 1986
D. Unfair Trade Practices
[85.062] What does not amount to unfair trade practice
Allotment of shares by a company is not a practice relating to carrying on any trade and hence allegations in that regard do not constitute unfair trade practice1. Putting a sticker of the enhanced price on the original printed price and selling the book at the revised price is not unfair trade practice since by sticking a sticker there is no material misleading of the public2. Where the supplier acts as per the terms and conditions of contract3 single act of deficiency such as shoes purchased developing a crack in the sole due to manufacturing defect, would not amount to unfair trade practice4. Failure to deliver shares after consolidation may not be said to be intentional or deliberate unfair trade practice5 neither would dispute already covered by arbitration award6.
Where delay in handing over possession of land is not due to manipulation or deceptive intention but due to pending litigation it is not unfair trade practice7. Prize scheme in newspaper for increasing circulation with questions to be answered and a slogan to be coined for the purpose of participation in the prize scheme will not amount to unfair trade practice in as much the reader is only getting an additional benefit of participating in the prize scheme apart from getting reading material worthy of its price8. Fixation of tariff being a legislative function and fuel surcharge being part of tariff there is no unfair trade practice9. When complainant is a trader he may not be a consumer entitled to complain about unfair trade practice10. Where no price is charged for participation in draw of lots there is no unfair trade practice11, mere proof of unfair trade practice is not enough causing loss is also to be established12
1 Morgan Stanley Mutual Fund v Kartick Das, (1994) 4 SCC 225 [LNIND 1994 SC 546] : (1994) 81 Comp Cas 318 : (1994) 2 CPJ 7 : (1994) 14 CLA 161 : (1994) 2 CLC 1.
2 Pustak Mahal v Rattan Lal Premi, (2004) 3 CPJ 52 (NC).
3 SK Goyal v Wipro Infotech Ltd, (2001) 1 CPR 4 : (2000) 3 CPJ 54 (MRTPC).
Page 2 of 2[85.062] What does not amount to unfair trade practice
4 S Durga Prasada Rao v Bata Shoe Store, (2000) 3 CPR 19 : (2000) 2 CPJ 59 (MRTPC).
5 SC Sharma v German Remedies Ltd, (2000) 3 CPR 63 : (2000) 2 CPJ 79 (MRTPC).
6 M Lal v President Leiah Co-op Housing Society Ltd, (2000) 1 CPR 61 : (1999) 3 CPJ 52 (MRTPC).
7 Sudha Jain v PragatisheelSamohikSehkari Krisi Samiti, (1999) 1 CPR 40 : (1999) 1 CPJ 7 (MRTPC).
8 Mukesh Maheswari Journalist v DainikBhaskar, (1999) 1 CPJ 29 : (1999) 2 CPR 1 (MRTPC).
9 Adhunik Chemicals Pvt Ltd v Rajasthan State Electricity Board, (2002) 1 CPR 14 : (2001) 3 CPJ 119 (MRTPC).
10 AS Narayana v Caterpillar Inc, (2003) 1 CPR 6 : (2002) 3 CPJ 60 (MRTPC).
11 Director General (I&R) v Spic Fine Chemicals Ltd, (2002) 2 CPJ 10 : (2002) 2 CPR 33 (MRTPC).
12 General Motors (India) Pvt Ltd v Ashok Ramnik Lal Tolat, (2015) 1 SCC429 : (2014) 4 CPJ 1 [LNIND 2014 SC 872] : (2014) 4 CPR 797.
End of Document
[85.063] Meaning of deficiencyHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > A. INTRODUCTION
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
A. INTRODUCTION
[85.063] Meaning of deficiency
“Deficiency” means any fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service1.
In normal course, if the service is found deficient as per the above criteria, than it is held deficient and the compensation is awarded. However, there may be abnormal circumstances beyond the control of the person performing service. Where such circumstances prevent a person from rendering service of the desired quality, nature and the manner, such person must not be penalised for the same2.
1 Consumer Protection Act, 1986 section 2(1)(g).
2 V Balakrishna Eradi, Consumer Protection Jurisprudence, “Introduction”, 2005, LexisNexis Butterworths, p 77.
End of Document
[85.064] Instances of deficiencyHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > A. INTRODUCTION
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
A. INTRODUCTION
[85.064] Instances of deficiency
Deficiency1 is a lack, shortage or insufficiency2. Any act or omission or indifference or callousness in the mater of execution of the work would amount to deficiency in service if the person who avails of the service ultimately gets less than the desired service3. However, breach of contract of sale and supply of goods will not be in the nature of deficiency in service4.
Providing life jackets, personnel trained to meet emergency and adequate arrangements for rushing victims, is a mandatory requirement during boat cruises and omission to do that is gross negligence amounting to deficiency in service5.
1 As to meaning of “deficiency” see [85.063].
2 Concise Oxford Dictionary, 1990, p 303.
3 Sri Shyam Sunder Mohanty v Secretary Gramin Consumer Labour Association, (1995) 1 CPR 818 (Ori).
4 Jaipur Metals & Electricals Ltd v Laxmi Industries, (1992) 2 CPR 119 (120) : (1991) 2 CPJ 602 : (1991) CPC 619 (NC).
5 PS Sandhu v UOI, (1997) 3 CPR 43 (NC) : (1997) 3 CPJ 18; not securing the cradle properly on the elephant and not taking appropriate safety measures to ward off crowds and keep them at a safe distance from the elephant during elephant ride amount to negligence and deficiency in service: Mayi Gowda v State of Karnataka, (2003) 2 CPC 76 : (2003) 1 CPJ 243 : (2003) 2 CPR 46 (NC); reversing M Mayi Gowda v State of Karnataka, (1996) 1 CPR 678; see also HUDA v Nalini Aggarwal, (1997) 2 CPJ 8 (SC)(refund claimed on account of delay in possession of flat); Sovintorg (India) Ltd v State Bank of India, (1999) 2 CPJ 4 [LNIND 1999 SC 674] (SC) (the Supreme Court observed that interest must be paid on the deposited amount on equitable grounds); Haryana Urban Development Authority v Darsh Kumar, (2002) 1 CPJ 35 (NC) (the National Consumer Disputes Redressal Commission, New Delhi, granted interest payable at the rate of 18% per annum to cover interest, cost escalation and compensation).
Page 2 of 2[85.064] Instances of deficiency
End of Document
[85.073] Postal and telegraph servicesHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > B. Negligence
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
B. Negligence
[85.073] Postal and telegraph services
The postal authorities are exempted from any liability in case of delay unless the loss or delay is caused fraudulently or through wilful act or default1 and in terms of the Indian Post Office Act, 18982, it will be necessary for a court to return a finding of negligence before awarding compensation3, and no compensation is payable outside the rules4.
The provisions are statutory and no order may be passed in supersession of the same. Under the Indian Post Office Rules 19335 letters or parcels containing coin, bullion, currency notes and the like are to be sent by post only in insured covers6. Further under the Indian Post Office Rules 19337, when letter or parcel contains government currency notes, bank notes, gold coins and the like, sender has to declare on the article the value of the contents at the time of dispatch8. The maximum liability statutorily fixed is Rs 1000 which may be granted when there is a loss of speed post articles or loss of its contents or even damage to the contents9. However, when an article has been entrusted to the counter clerk at the post office for being franked and dispatched by post and he fails to do that, the Indian Post Office Act, 189810 is not attracted11. Not doing something one ought to do is also wilful act and liability may be fixed on the postal department and its functionaries12.
In case of embezzlement by the employee or agent of post office, the postal department would be guilty of deficiency in service13. Fraud involving alleged fake entries in the passbook has to be established by production of deposit slips14. In case of deficiency of address, it is not for the department to search out the addressee15 and in case of delivery of telegram mala fides have to be established16. Opening a second National savings scheme is only an irregularity and not a contravention covered by the Post Office Savings Bank General Rules 198117, and the amount in the second account has to be refunded with interest18. Where National savings certificates had been obtained in contravention of the postal department it may not be held to be deficient in service since the National Savings Certificates19 lays down that certificates purchased or acquired in contravention of rules would not carry interest and if any interest had already been paid the same is recoverable as arrears of land revenue, however, since the post office officials might not have been unaware of the aforesaid rules when they issued the certificates and the Central Government had also enjoyed the benefit of the money for several years, ends of justice would be
Page 2 of 3[85.073] Postal and telegraph services
met if the holders of the certificates are allowed interest at the maximum rate allowed by banks on fixed deposits for a period of three years or more during the relevant period20. Investor may not be denied the amount due to him just because he lost his receipt and a pragmatic view would be to make payment against indemnity21. Where the insured under the postal insurance scheme dies during the grace period for payment of premium and there had been no default previously, the nominee would be entitled to the insured amount22. The provision regarding insistence on proper attestation is intended for the purpose of safeguarding the interests of the depositors and there is no deficiency in service if such a course is insisted upon23. When a person uses postal service for E-Commerce, he cannot compliantagainst the postal department for loss as it is for a commercial purpose24. Under section 6 of the Indian Post Office Act, 1898, mere negligence does not suffice and there should be an element of mens rea25.
1 Presidency Post Master v U Shanker Rao, (1993) CPC 694 : (1993) 1 CTJ 556 : (1993) 2 CPJ 141 (NC); Post Master GPO v AkhilBharatiya Grahak Panchayat, (1995) 2 CPJ 230 : (1995) 3 CTJ 389 : (1995) 2 CPC 43 : (1995) 2 CPR 267 (NC); Senior Supndt of Post Offices, Pune v CG Aggarwal, (1994) 1 CLT 658; Head Post Master, Post Office, Railway Road, Kurukshetra, Haryana v Vijay Ratan Aggarwal, RP No 1006 of 2001 decided on 18 September 2002 LJCP 493 (NC); UOI v Brahm Dev Upadhyay, RP No 1006/2001 dated 22-1-2001; Varun Garg v Assistant Post Master, Post Office, RP No 1035 of 2002 dated 17-1-2002; Hazarimal Moonat v Supdnt of Post offices, Ratlam, (2003) 2 CPC 71 : (2003) 1 CPJ 177 : (2003) 2 CPR 41 (NC); KM Singh v Senior Post Master, Ramesh Nagar, New Delhi, (2003) 2 CPC 229 : (2003) 1 CPJ 167 : (2003) CTJ 210 : (2003) 1 CPR 183 (NC); Director, Postal Services A and N Islands v ShyamaliGanguli, (2004) 3 CPJ 60 (NC); Senior Superintendent, Post Offices v Amit Kumar Sharma IV, (2014) CPJ 566 (NC).
2 Ie. of the Indian Post Office Act, 1898 section 6. The government will not incur any liability by reason of the loss, misdelivery or delay or damages to any postal article in course of transmission by post, except in so far as such liability may in express terms be undertaken by the Central Government as hereinafter provided and no officer of the post office will incur any liability by reasons of any such loss, mis-delivery, delay or damage, unless it was caused fraudulently or by his wilful act or default.
3 Senior Supndt of Post Offices, Trivandrum v Keltron Projects Ltd, (2002) 3 CPR 169 : (2002) 3 CPJ 429 (NC); Dharam Raj Rajinder Sood v BN Kondal, (2002) 1 CPC 392 : (2001) 3 CPR 136 (NC); Post Master, Imphal v Jamini Devi, (2000) 1 CPR 34 : (2001) 1 CPJ 28 (NC); Devi Engineering Co v UOI, (1997) 1 CPC 406 : (1997) 1 CPR 128 : (1998) 1 CPJ 103 (NC).
4 Head Post Master, Post Office, Railway Road, Kurukshetra, Haryana v Vijay Ratan Aggarwal, RP No 1006 of 2001 decided on 18 September 2002 LJCP 493 (NC).
5 Ie the Indian Post Office Rules 1933 rule 83.
6 See note 4 above.
7 Ie Indian Post Office Rules 1933 rule 83A.
8 See note 4 above.
9 See note 4 above.
10 Ie the Indian Post Office Act, 1898 section 6.
11 Post Master General, Tamil Nadu v Calvin Jacob, (1994) 2 CPR 707 : (1994) 2 CTJ 676 : (1994) 2 CPC 192 : (1994) 3 CPJ 85 (NC).
12 Supndt of Post Offices v UpovoktaSurakshyaParishad, (1997) 1 CPR 11 : (1997) 1 CPC 246 (NC); Post Master, Ranipet HO v NB Janakiraman, (2001) 3 CPR 189 : (2002) 1 CPC 208 : (2002) CTJ 557 (NC) (default of an extensive nature as telegraphic money order delivered after two months).
13 UOI through PMG Agra v Anil Kumar Garg, (2002) 3 CPJ 255 : (2002) 2 CPR 76 (NC).
14 Supndt of Post Offices v Mahendra Nath Bask, (1995) 2 CPR 561 (NC).
15 Chief Supndt, Central Telegraph Office v Geetha Srinivasan, (1995) 3 CPR 469 : (1996) 4 CTJ 20 (NC).
16 UOI v Tej Bhan, (1996) 1 CPR 88 (NC) : (1996) 1 CPJ 205 (NC).
17 Ie as covered by the Post Office Savings Bank General Rules 1981 rule 17.
18 Dept of Post & Telegraphs v RC Saxena, (1997) 2 CLT 205 : (1997) 1 CPC 435 : (1997) 5 CTJ 284 : (1998) 1 CPJ 107 (NC).
19 Ie the National Savings Certificates rule 11.
20 UOI v Monika Tandon, (1995) 2 CPJ 20 (NC).
Page 3 of 3[85.073] Postal and telegraph services
21 Ram NathMathuria v UOI, (2002) 2 CPC 414 : (2002) 2 CPR 147 : (2002) 3 CPJ 22 (NC).
22 PMG Haryana Circle v Naraini Devi, (2001) 3 CPR 188 (NC).
23 Chief Post Master, Kanpur v PK Sarraf, (1994) 1 CPJ 205 (NC).
24 Mallika Verma v UOI, (2015) SCC ONLINE NCDRC 950
25 Dr C Chella Baskar v The Secretary, Selection Committee, (CC 430 of 2015 judgment dated 15-1-2016 (NC) ).
End of Document
[85.074] RailwaysHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > B. Negligence
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
B. Negligence
[85.074] Railways
Public utility services like railways having complete monopoly, must not take passengers at large for granted and expect them to run for getting the information regarding status of train for which they had confirmed tickets as it is the duty of the railways to publish widely information with regard to status of trains if cancelled1. Where not providing berths to complainants holding reserved tickets, is a clear case of deficiency in service on the part of railways2, as also for wrongfully allotting berths already reserved to others3. However, railways may not be penalised for not confirming waitlisted passengers4. The Railway Tariff5 which states that the railway administration does not guarantee seats or berths has no application to reserved berth accommodation6. Where the complainant has made several requests for reservation and there is nothing produced by the railways to show, that reservation was made as per priority, there is deficiency in service7. Where excess fare is charged and confirmed tickets are issued, but the names are found only in the waiting list and several persons who had booked subsequently have been given confirmed booking there is clear deficiency in service8. Deficiency in service has to be clearly established9.
Accident due to poor maintenance of railway foot over bridge, complaint under Consumer Act is maintainable10.
1 Railway Board v Amrit Pal Singh, RP No 1700 of 2002 decided on 13 April 2004.
2 UOI v KK Shukla, (2002) 1 CPR 77 : (2002) 3 CPJ 191 (NC); B Pushpakanti v General Manager, Southern Railway, (2000) 3 CPJ 3 (NC).
3 VK Upadhyay v General Manager, Central Railways, (1997) 2 CPR 288 : (1997) 5 CTJ 822 (NC).
4 UOI v GC Sharma, (1994) 2 CPR 230 (NC).
5 Ie the Railway Tariff rule 306.
Page 2 of 2[85.074] Railways
6 B Pushpakanti v General Manager, Southern Railway, (2000) 3 CPJ 3 (NC).
7 Deputy Chief Commercial Manager, Eastern Railway v KK Sharma, (2000) 2 CPC 646 : (2002) 3 CPJ 1 (NC).
8 Union Govt of India, Dept of Railways v Subhash Chand Jasuja, Supreme Court and National Commission on Consumer Protection Law, Vol 3, p 318 (NC).
9 Nirmal Ostwal v Northern Railway, (2004) 3 CPR 151; UOI through General Manager, North Eastern Railway, Gorakhpur v Justice Ram Naresh Thakur, (1994) 2 CPR 711 (NC).
10 Vinaya Vilas Sawant v UOI 2008, (1) CPC 277 : 2007 SCC ONLINE NCDRC 86.
End of Document
[85.075] Loss of belongingsHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > B. Negligence
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
B. Negligence
[85.075] Loss of belongings
All carriers including railways have a common law duty of reasonable care and the standard of care is high and strict1. When unauthorised persons enter reserved carriage, assault the passenger and take away the passenger’s valuables forcibly and further assault, bona fide passengers it is not open to the railway officials to say that those incidents were wholly unforeseen or beyond their control2. Railways are responsible to care for and protect the passengers in reserved compartment, and are answerable for theft of the belongings of the passengers3 but only on the proof of negligence or misconduct on the part of the railway employees4.
1 PA Narayanan v UOI, (1998) 3 SCC 67; Sumathi Devi M Dhanwaty v UOI, (2004) 2 CPJ 27 (SC).
2 See note 1 above.
3 General Manager, Southern Railway v A Shameem, (2004) 1 CPJ 40 (NC); South Eastern Railway v Bharathi Arora, (2004) 1 CPJ 114 (NC) : (2003) 2 CPC 48 : (2003) CTJ 479 : (2003) 2 CPJ 101; GM South Central Railway v RV Kumar, RP No 2154 of 2004 decided on 04 January 2005; M Kanthimathi v Govt of India, Ministry of Railways, (2003) 1 CPR 152 : (2003) 1 CPJ 16 (NC); General Manager, Northern Railways v Amarnath Agarwal, (2003) 2 CPJ 54 : (2003) 1 CPR 316 (NC); Divisional Railway Manager v Abhishankar Adhikari, (2005) 4 CPJ 79 (NC); General Manager South Central Railway v RV Kumar, (2005) 4 CPJ 57 (NC).
4 UOI v Rama Shankar MisraI, (2016) CPJ 123 (NC).
End of Document
[85.076] Failure to provide amenitiesHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > B. Negligence
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
B. Negligence
[85.076] Failure to provide amenities
Non-availability of water in reserved compartments1, failure to provide cushioned seats2, bad maintenance of compartments3 are clear deficiencies in service and all passengers put to inconvenience have to be accorded similar treatment in the award of compensation irrespective of their status4.Railways is liable for deficiency in service inpackage tours5.
1 South Eastern Railway v Yeshwant Tiwari, (2003) 2 CPR 12 (NC) : IV (2003) CPJ 39, UOI v GummadiNarasimh, (1993) 2 CPJ 214 (NC).
2 General Manager, Southern Railways v N Prabhakaran, (1992) 2 CPR 109 (NC).
3 General Manager, South Eastern Railway v Anand Prasad Sinha, (1991) CPC 22 : (1991) 1 CPR 145 : (1991) 1 CPJ 10 (NC).
4 See note 3 above.
5 Indian Railways Catering & Tourism Corp v KS Sandeep Shetty, (Rev Petition 403 of 2016 dated 24-2-2016 (NC) ).
End of Document
[85.077] Death during rail travelHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > B. Negligence
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
B. Negligence
[85.077] Death during rail travel
Where death occurs during travel due to the carelessness of the passenger, there is no deficiency in service on the part of the railways1. Where it is a case of falling down and sustaining grievous injuries, it is a case of untoward incident as mentioned in the Indian Railways Act, 19892 and the proper forum for adjudication would be the railway claims tribunal under the Railway Claims Tribunal Act, 19873. Where it is a case of accidental death, as while passing through interconnecting passage between coaches falling down and sustaining fatal injuries, it is a case for consumer forum4.But railway cannot be made liable for the murder of a passenger in the compartment as it is not deficiency of service by railways5.
1 Miru Devi v UOI, (1994) 2 CPR 648 (NC).
2 Ie as mentioned in the Indian Railways Act, 1989 section 124A: see the Indian Railways Act, 1989 section 124A.
When in the course of working in railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the department of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration will notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only of loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident.
Indian Railways Act, 1989 section 124A proviso: provided that no compensation will be payable under this provision by the railway administration if the passenger dies or suffers injury due to (1) suicide or attempted suicide by him; (2) self-infficented injury; (3) his own criminal act; (4) any act committed by him in a state of intoxication or insanity; (5) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.
Page 2 of 2[85.077] Death during rail travel
Indian Railways Act, 1989 section 124A explanation: for the purpose of this provision, passenger includes (a) a railway servant on duty; and (b) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.
3 Ie under the Railway Claims Tribunal Act, 1987 section 15: see the Railway Claims Tribunal Act, 1987 section 15.
On and from the appointed day, no court or other authority will have, or be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in the Railway Claims Tribunal Act, 1987 section 13(1) and (1A); see also Southern Railway v M Chidambaram, (2002) 1 CPJ 34 (NC).
4 UOI v Nathmal Hansaria, (1997) 5 CTJ 315 : (1997) 1 CPR 133 (NC).
5 DC Mittal v UOI, 2015 SCC ONLINE NCDRC 2641 : CC 18 of 2009, judgment dated 28-5-2015 (NC).
End of Document
[85.078] Contractor charging more than fixed by the railwaysHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > B. Negligence
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
B. Negligence
[85.078] Contractor charging more than fixed by the railways
Extra fare charged by the travelling ticket examiner (TTE), misbehaviour by TTE and contractor collecting more than the rates fixed by the railways in the lease deed for parking vehicles are all deficiencies in service answerable by the railways1. Management of traffic2, late running of trains3 and decisions by railways relating to maintenance of national economy4 do not give rise to deficiency in service.
1 UOI, Dept of Railways v RL Aggarwal, RP No 2231 of 2000 decided on 23 May 2001 LJCP 487 (NC).
2 B Vaidyanathan, Secretary, Consumer Protection Council Rourkela v General Manager, Southern Railway, (1996) 4 CTJ 803 : (1996) 1 CPR 46 (NC).
3 UOI v Gummadi Narasimha, (1993) 2 CPJ 214 (NC).
4 Dainik Rail Yatri Sangh v General Manager Northern Railway, (1992) 1 CPR 54 : (1992) 1 CPJ 218 : (1992) CPC 160 (NC).
End of Document
[85.079] Jurisdiction of consumer forumHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > B. Negligence
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
B. Negligence
[85.079] Jurisdiction of consumer forum
Matters covered by the Railway Claims Tribunal Act, 19871, in view of the provisions dealing with the bar of jurisdiction under the aforesaid enactment2 which has the jurisdiction of any court or other authority from the appointed day and also in view of the provision under the above said enactment which stipulates that the said legislation has overriding effect3 over the provisions of any other law, may not form the subject matter of complaints under the Consumer Protection Act, 19864.
1 Ie as covered by the Railway Claims Tribunal Act, 1987 section 13.
2 Ie under the Railway Claims Tribunal Act, 1987 section 15.
3 Ie the Railway Claims Tribunal Act, 1987 section 28.
4 Raj Kumar Kaushik v UOI, (CC 895 of 2016 judgement dated 20-7-2017 (NC) ); UOI v Sri Ramji Enterprises, FA No 411 of 1996 decided on 26 September 2001 LJCP 270 (NC).
End of Document
[85.080] Sick industrial unitsHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > B. Negligence
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
B. Negligence
[85.080] Sick industrial units
Sick industrial units are outside the purview of the Consumer Protection Act, 1986 till cessation of declaration under the Sick Industrial Companies (Special Provisions) Act, 19851.
1 Standard Motor Products of India Ltd v B Damodaran, (1996) 4 CTJ 296 : (1996) 1 CPR 100 (NC); Standard Motor Products of India Ltd v S Jayakumar, (1994) 2 CPR 547 (NC); Standard Motor Products of India Ltd v Mohan Rao, (1994) 3 CPJ 118 (NC); Ramon and Demn Ltd v State Bank of India, (1992) 3 CPJ 1 : (1994) 1 CLT (NC) 113.
End of Document
[85.081] Telephone billsHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > B. Negligence
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
B. Negligence
[85.081] Telephone bills
The following cases are instances of deficiency in service:
(1) rent charged for the period the telephone was not functional1;
(2) issuance of wrong and inflated bill2;
(3) not following the departmental instructions for dealing with cases of sudden spurt in bills3;
(4) bills sent wrongly in spite of intimation of change of address4;
(5) not informing the subscriber about shifting of telephone to another exchange5;
(6) delay in shifting telephone6;
(7) delay in unlocking STD facility7;
(8) application for allotment returned after three years8;
(9) arbitrary disconnection;
(10) unilaterally changing service package;
(11) delay in rectification.
Further in case of a defective telex system, the consumer is entitled to refund of security deposit or compensation9.
1 Chief General Manager MTNL v Consumer Rights Society, (2003) 1 CPR 61 : (2003) 2 CPC 266 (NC); District Manager, Telephones Patna v Lalit Kumar Bajila, (1991) CPC 531 : (1991) 2 CPR 702 (NC).
2 SB Singh Gurjan v Telecommunication Dept, Jodhpur, (2005) 2 CPJ 6 (NC); General Manager Telecom v Ajaib Singh, (2002) 1 CPR 169 (NC).
Page 2 of 2[85.081] Telephone bills
3 DSNL v PD Khanduri, (2005) 1 CPJ 74 (NC); Telecom District Manager, Hoshiarpur Punjab v Kamaljit Kaur, (2002) 1 CPR 84 (NC).
4 Madras Telephones v M Singaravelu, (1992) 2 CPR 87 (NC).
5 Harkishan Lal Kambhoj v General Manager, Telephones, Ferozpur, (2002) 3 CPR 241 (NC).
6 Babir Singh v The General Manager, Telephones, (2002) 3 CPR 242 (NC); General Manager, Calcutta Telephones v TimirBaranBhattacharjee, (2001) 3 CPR 66 (NC).
7 Vijay Sethi v District Manager, Telephones, (1997) 1 CPC 424 : (1997) 1 CPR 103 (NC).
8 Telecommunication Dept v Shanmugham Chemical Industries, (1995) 2 CPR 201 (NC).
9 UOI v Jagadamba Rice Mills, (1992) 1 CPR 293; Divisional Engineer, Calcutta Telephones v Bilesh Chand Jain, (2002) 1 CPR 141 : (2002) 1 CPC 563 (NC); UOI v BS Sidhu, (1992) 1 CPR 537 (NC).
End of Document
[85.082] Consequential lossHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > B. Negligence
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
B. Negligence
[85.082] Consequential loss
When materials on record reveal that the complainant has suffered loss in his business due to non-functioning of his telephone for a long time, compensation is to be allowed1. Inconvenience caused is also to be compensated2.
Allegations of misuse3, tampering or misuse of meter4, error in billing5 have to be satisfactorily established by the complainant.
1 Krishnan Das Aggarwal v UOI, (1992) CPC 657 : (1992) 2 CPJ 468 : (1992) 2 CPR 423 (NC); General Manager, Calcutta Telephone v Kamala Shankar Upadhyaya, (2002) 3 CPJ 53 : (2003) CTJ 142 : (2003) 1 CPC 30 : (2002) 3 CPR 185 (NC); UOI v Sathya Bama Thakur, (1991) CPC 333 : (1991) 1 CPJ 31 : (1991) 1 CPR 43 (NC); UOI v Aman Dahiya, (1993) 1 CPR 117 (NC).
2 District Manager Telephones Patna v Lalit Kumar Bajila, (1991) CPC 531 : (1991) 2 CPR 702 (NC).
3 Accounts Officer, Telecom District Manager, Panaji, Goa v Sheela HM Gaunekar, (1995) 3 CPR 616 (NC).
4 District Manager, Patna Telephones v Harishankar Sharan Singh, (1995) 2 CPR 612 (NC); SaptahikKabir Archana v SDO Telephones, (1994) 1 CPJ 35 : (1994) 1 CPC 692 : (1994) 1 CPR 796 (NC).
5 UOI through Divisional Manager, Telecom v Ashok Kumar Gupta, (1993) 3 CPR 383 (NC).
End of Document
[85.084] Disconnection of telephone due to non-paymentHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > B. Negligence
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
B. Negligence
[85.084] Disconnection of telephone due to non-payment
Indian Telegraph Rules 19511 specifically entitles the department to disconnect the telephone without any notice when the bill has been served and when there has been default in the payment of such bill and further it also empowers the department in cases of default in payment of rent or other charges in respect of a telephone service provided to a subscriber to disconnect without notice any other telephone or telephones or any telex service rented by him2.Telegraph Act being a special law will override the remedy under Consumer Protection Act which is a general law3.
1 Ie the Indian Telegraph Rules 1951 rule 443.
2 General Manager, Telephones, Faridabad v DK Singh, (1995) 2 CPC 212 : (1995) 2 CPR 510 : (1995) 2 CPJ 211 (NC); Accounts Officer v Krishna Trading Co, (1999) 1 CPR 96 : (1999) 2 CTJ 29 : (1999) 1 CPC 581 (NC).
3 General Manager, Telecom v M Krishnan, (2009) 8 SCC 481 [LNINDORD 2009 SC 552] : AIR 2010 SC 90 [LNINDORD 2009 SC 552]: (2009) 3 Ker LT 991 [LNINDORD 2009 SC 552].
End of Document
[85.085] When there is no deficiency in serviceHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > B. Negligence
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
B. Negligence
[85.085] When there is no deficiency in service
There is no deficiency in service in the following cases:
(1) disconnection for non-payment of bills1;
(2) disconnection without notice for non-payment of bills2;
(3) demand for additional security3;
(4) disconnection subsequent to dispute in ownership4.
There is no deficiency in service if there is disruption in service due to factors beyond the control of the department such as strike or work to rule by the staff of the department.
1 Kasan Noor Mohammad Urad v UOI, (1996) 2 CPC 537 : (1996) 2 CPJ 172 : (1996) 3 CPR 21 (NC); Mahanagar Telephone Nigam Ltd v Vijay G Pradhan, (1996) 1 CPJ 32 (NC).
2 General Manager, Telephones v DK Singh, (1999) 1 CPC 464 : (1994) 1 CPJ 155 : (1994) 1 CPR 463 (NC).
3 General Manager Telephones v Associated Printers, (1993) 2 CPR 403 (NC).
4 Society of Civil Rights v UOI, (1999) 1 CPJ 199 : (1991) CPC 603 : (1991) 2 CPR 276 (NC).
End of Document
[85.086] Services rendered by the medical practitionerHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > B. Negligence
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
B. Negligence
[85.086] Services rendered by the medical practitioner
Services rendered by the doctors and hospitals falling under the exclusionary clause of the Consumer Protection Act, 19861, irrespective of the fact that part of the service is rendered free of charge would nevertheless fall within the ambit of the expression, service, as defined under the aforesaid enactment2. The rendering of service such as consultation, diagnosis and medical treatment to a person who has taken an insurance policy and where the charges are paid by the insurance company to the medical practitioner would fall within the ambit of the expression, service, as defined under the Consumer Protection Act, 19863, and the insured enjoying the benefit being the beneficiary4. Though it is in the nature of personal service, there being no relationship of master and servant, it being a contract for services5. The complainant must be given a chance to substantiate his case and it is for the consumer forum to grant compensation to the extent it finds reasonable, fair and proper in the facts and circumstances of the case according to established judicial standards while the claimant is able to establish his charge6.
Complaint alleging deficiency in service may not continue against the legal representatives of opposite party doctor7 while the legal representatives of complainant may continue the complaint8. Insurance company though not a necessary party is a proper party9.
Where no fee is paid for the treatment nor is it the case of the complainant that any fee for operation is charged from any other patient in the said hospital, there may be no complaint before the consumer forum alleging deficiency in service10. However, where medical service is rendered as part of terms and conditions of service, it would not amount to free service but would constitute service for purposes of Consumer Protection Act, 198611.
In the case of failure of operation performed in a government hospital, on proof of negligence, the state would be vicariously liable12. When a child is taken to a hospital and treated there, the parents would be beneficiaries of the service and would come within the meaning of the term, consumer, and the provisions of the above said enactment would in no way prevent damages from being awarded to both the child and the parent13. Code of medical ethics carves out an exception to the rule of confidentiality and permits the disclosure in circumstances in which public
Page 2 of 2[85.086] Services rendered by the medical practitioner
interest would override the issue of confidentiality particularly where there is an immediate and future health risk to others14. A homoeopath practitioner may not treat in allopathi system15.
1 Ie falling under the Consumer Protection Act, 1986 section 2(1)(o).
2 Ieself-infficented as defined under the Consumer Protection Act, 1986 section 2(1)(o); see also IndianMedical Association v VP Shantha, (1995) 6 SCC 651 [LNIND 1995 SC 1110] (NC); SaileshMunjal v All India Institute of Medical Sciences, (2004) 3 CPR 27 (NC).
3 Ie as defined under the Consumer Protection Act, 1986 section 2(1)(o).
4 See note 2 above.
5 See note 2 above.
6 Charan Singh v Healing Touch Hospital, (2000) 7 SCC 668 [LNIND 2000 SC 2115] : (2000) 3 CPR 1 (SC).
7 Balbir Singh Makol v Chairman, Ganga Ram Hospital, (2001) 1 CPR 45 (NC).
8 Mukesh Kumari v N Lal Oswal Cancer Treatment and Research Foundation, CA No 5690/04 decided on 30 August 2004 (SC).
9 CC Chobal v Pankaj Srivastava, (2003) 3 CPR 20 : (2003) 4 CPJ 111 (NC).
10 Rabinarayan Sahoo v B Jayaram Patra, RP No 2253 of 2002 decided on 20 November 2003; AS Sibia v UOI, (2002) 2 CPC 103 : (2002) 2 CPJ 317 : (2002) 2 CPR 1 (NC); Suhas Mohan Haldulkar v Secretary, Public Health Dept, Govt of Maharashtra, (1994) 3 CPJ 124 (NC).
11 Laxman Thamappa Kotgiri v GM Central Railway, (2006) 3 CPJ 6 (SC) : (2005) 1 Scale 600 : (2005) 2 SLT 387.
12 State of Haryana v Santra, AIR 2000 SC 1888 [LNIND 2000 SC 700]: (2000) 5 SCC 182 [LNIND 2000 SC 700] (State of Haryana v Santra 2000 5 SCC 182 [LNIND 2000 SC 700] has been overruled in State of Punjab v Shiv Ram, 2005 7 SCC 1 [LNIND 2005 SC 646] : AIR 2005 SC 3280 [LNIND 2005 SC 646]: (2006) 4 CPJ 17 SC); Savita Garg v Director, National Heart Institute, (2004) 8 SCC 56 [LNIND 2004 SC 1064].
13 Spring Meadows Hospital v Harjot Ahluwalia, AIR 1998 SC 1801 [LNIND 1998 SC 357]: (1998) 4 SCC 39 [LNIND 1998 SC 357] : (1998) 92 Comp Cas 797 : (1998) 1 CPR 1 (SC).
14 TokughaYepthomi v Apollo Hospital Enterprises Ltd, (1999) 1 CPC 1 : (1998) 3 CPJ 12 (SC).
15 Bhanwar Kanwar v RK Gupta, (2013) 4 SCC 252 [LNIND 2013 SC 1126] : (2013) 2 CPJ 5 (SC); Poonam Verma v Ashwin Patel, (1995) 3 CTJ 413 : (1996) 3 CPR 205 : (1996) 4 CTJ 465 (SC); Mohd Suleman Ansari v Shankar Bhandari, (2005) 12 SCC 430 : (2005) 3 CPJ 1 (SC).
End of Document
[85.087] When a lawyer may be sued for professional negligenceHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (3) DEFICIENCY IN SERVICES > B. Negligence
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(3) DEFICIENCY IN SERVICES
B. Negligence
[85.087] When a lawyer may be sued for professional negligence
Where a counsel goes beyond the brief given to him, and any harm is caused to the client for whom he appears it would be a case of deficiency in service and if a settlement is recorded on the basis of statement made by the counsel and if it is found that counsel had no such instruction no question of fraud arises for recalling the order and the insurance company may proceed against its lawyer for deficiency in service1. Where the lawyer gives wrong advice, he may be sued for professional negligence2. Where in the plaint drafted by him, the counsel had taken extremely inconsistent stands it may amount to deficiency in service3. Negligence on the part of the lawyer has to be proved4. Where there is no proof of payment of fees as consideration, complaints will not lie5. Where the advocate collects money for institution of a suit for recovery of money and instead files a suit for a declaration that certain amounts are due from the defendant by paying a nominal court fee, there is clear deficiency in service6. Strike by lawyers is not a justifiable ground for adjournment and the absence of lawyers on that score is deficiency in service7.
1 Diamond Elastomers Pvt Ltd v United India Insurance Co Ltd, (2002) 5 CCC 138.
2 Jacob Mathew v State of Punjab, (2005) 6 SCC 1 [LNIND 2005 SC 587] : AIR 2005 SC 3180 [LNIND 2005 SC 587]: (2005) 3 CPJ 9 (SC); Amritsar Haldi Sales Corp v Punjab State Electricity Board, (2005) 3 CCC 75.
3 P Krishna Rao v Mandipalli Devaiah, (2005) 3 CCC 90.
4 Narasinha Narayana Shirodkar v Ajit N Jakhadi, (2003) 1 CPR 124 (NC) : (2003) CCC 267.
5 SR Bhanrale v Ranjit Kumar, (2001) 3 CPR 70 (NC).
6 G Jambunathan v S Velumuthu, (1996) 4 CTJ 131.
7 Ram Prakash Pal Gupta v Ranjana, (2002) 1 CPR 146 : (2002) 2 CPJ 118 (NC).
Page 2 of 2[85.087] When a lawyer may be sued for professional negligence
End of Document
[85.088] Instances of deficiency in serviceHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > A. Generally
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
A. Generally
[85.088] Instances of deficiency in service
An advocate offers service for consideration when he accepts briefs and receives fees1. His duty would end only after the intimation of the result of the proceedings to the client and the client must be left with adequate time to avail of further remedy2. There must be proof of engagement and payment of fees3. Person covered by agricultural and rural debt relief scheme must be given the benefit and security released4.
In the absence of proof of alleged deficiency5 in service, the complainant may not succeed6.
Refusal to settle claim in foreign currency will not amount to deficiency in service, unless title had passed to the foreign consignee and the claim is made abroad7
1 RA Thorat v Govindan Gopinath, (2000) 3 CPJ 104.
2 Riaz Ahmed Sharifkhan v Shri Babu Mustafa Khan, (1998) 3 CPJ 559 : (1998) 3 CPR 423.
3 SM Ramanujam v R Damodaran, (1999) 1 CPJ 592.
4 Jenath Ali Mondal v Kadpur SKUS Ltd, (1998) 1 CPR 576.
5 As to meaning of “deficiency” see [85.063].
6 Mangal Deep v Carrier Aircon Ltd, (1996) 3 CPR 53; see also Maruti Udyog Ltd v ML Gupta, (2002) 1 CPJ 68 (where defective air conditioner of the car was attended to and rectified and the complainant was also satisfied with the working and also did not make an issue of it during the subsequent service, there was no deficiency in service).
7 National Insurance Co Ltd v Sky Gems, AIR 2002 SC 545 : 2002 AIR SCW 121 : (2002) 1 CPR 42 (SC); Fiorio Coloria SPA v Oriental Insurance Co Ltd, (1994) 2 CPR 263 : (1994) 2 CTJ 775 (NC).
Page 2 of 2[85.088] Instances of deficiency in service
End of Document
[85.089] Instance of deficiency in service in air travelHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > B. Air Travel
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
B. Air Travel
[85.089] Instance of deficiency in service in air travel
Passenger having confirmed ticket may not be denied boarding1. When travel agent is the agent of the carrier and the ticket is confirmed by the central reservation system of the airlines concerned complainant will not be refused relief2. Non-impleading of the party against whom deficiency is alleged is fatal to the complaint3. A mere agent who has to act as per the instructions of their principal the airlines may not be foisted with liability4. Where flight is cancelled and the passenger is to stay inside the airport without lodging facilities being provided, the airlines is to reimburse amount spent for lodging facility5. Where during air travel, a passenger develops medical problem and proper efforts are taken to treat him by the airlines though there is some delay in informing the next of kin, there is no deficiency in service6. Gesture of goodwill to keep the fair name may not be taken advantage of or misconstrued to allege deficiency against the airlines7. Both the travel agent and the airlines would be liable if notice of change of time of flight is not given to the passenger8. Where the change is communicated by airlines to agents and also published in newspapers but the travel agent fails to inform the passenger, travel agent alone is liable9. Where the flight is cancelled due to inclement weather and alternative flight is not arranged, the passenger is not entitled to relief unless he establishes negligence and consequent loss or injury10. Pilots are roistered well in advance and it is not possible for a pilot to be suddenly called to fly another plane11.
In the case of confirmed ticket, boarding pass has to be given on that day and if it is done on the next day and in the process the passenger suffers loss he has to be compensated12. Where the passengers are put to inconvenience or loss due to mistakes caused by computers or otherwise, the airlines as well as the travel agents are answerable13. Where accommodation is not confirmed on account of heavy rush, no negligence may be attributed to the airlines, unless there is proof of any loss suffered by the passengers14. Where there is disruption of flights due to illegal strike, proceedings may be initiated not only against the airlines but also against the erring staff or their union15. There is no vicarious liability of the airlines if the travel agent makes a mistake in booking tickets16, since he books tickets on behalf of the passenger17.
Where confirmed tickets are issued by authorised travel agent or the airlines but there is no flight on the date indicated in the air ticket, airlines would be liable18. Wheelchair not provided in spite of recorded request in the
Page 2 of 3[85.089] Instance of deficiency in service in air travel
computer at the time of booking tickets and subsequent reminders will give cause of action for alleging deficiency in service19.
In view of the statutory bar found in the Indian Airlines, Cancellation and Refund Regulations 198520, refund for air ticket may not be allowed in the absence of original ticket irrespective of whether ticket is lost or stolen21. Free tickets and free schemes which will be subject to conditions imposed by the airlines concerned are service under the Consumer Protection Act, 198622. Deficiency in service may not be inferred for detention on a suspicion if the passenger’s travel papers are forged and consequently the passenger misses his connecting flight23.
Facilities provided in-flight, if found inadequate or wanting, may give cause of action, food served to passengers on board forms part of the service and any defect in the food constitutes deficiency in service and this will apply even if food is supplied by caterers, the airline being the principal is answerable; reclinable seat if not provided to business class passengers24 reporting at the counter after reporting time, and after counter is closed will absolve the airline of any deficiency in service25.
Airport authority is answerable if injury or death is caused on account of negligence of airport staff in not maintaining and supervising the working of escalator26, step-ladder27, and the like. Passenger is bound by the terms of the contract printed on jacket of ticket28. Where the compensation claimed is too remote, the same may not be granted29. Denial of accommodation to passengers having confirmed ticket, due to overbooking, will make the airline liable to pay compensation as per the international practice of paying denied boarding compensation30. Since there is no similar law in India, compensation payable will depend on the contract between the passenger and the airlines and in case there is no such contract, passenger will be awarded compensation under the law of torts31. Unless part of cause of action arose within its territorial jurisdiction, the forum or commission concerned may not entertain the complaint even if the airlines had a branch office within the territory32.
The airlines may not be made liable for delay in operation due to reasons beyond its control and where every possible action was taken by the airline staff to avoid waste of time or inconvenience to the passengers33. Failure to deposit the amount payable under the Carriage by Air Act, 197234 for death of a passenger in an air crash raises a serious consumer dispute inviting punitive damages35. Minor child left unattended though the airlines had assured of a policy of providing escort governing travel of unaccompanied minor36.
1 Air India Express through Manager-Admin v Dr Sumanth Bhardwaj, 2013 SCC ONLINE NCDRC 1075; Chandi Prasad Bhatt v British Airways, (2003) 1 CPJ 169 : (2003) 1 CPR 347 (NC); Antonio Joao Fernandes v Flight–in–charge Jet Airways, (2004) 2 CPJ 522; Air India v Kishore, (2003) 3 CPJ 40 : (2003) 2 CPR 69 (NC); Rajinder Pal Jawra v Secretary, UOI, (2003) 1 CPJ 24 : (2003) 1 CPR 35 (NC); Manager, Air India Ltd, Trichy Road, Coimbatore v A MoideenKutti, (2002) 2 CPR 4 : (2003) 1 CPJ 65; Managing Director Air India v B Vijaykumar, (1995) 2 CPJ 7 (NC); Air France v Unik Traders, (2005) 3 CCC 65.
2 Air India v Harjeet Singh, (2003) 3 CPJ 166 (NC).
3 J Swaraj v Stic Travels, (1993) 2 CPJ 969 (TN). As to the meaning of “complaint” see [85.047].
4 Namita Nigam v Janta Travels, (2002) 1 CPR 3 (NC).
5 Chief General Manager, Air India v Antony Benjamin, (1998) 1 CPJ 65 (TN).
6 S Subramaniam v KLM Royal Dutch Airlines, (1999) 1 CPJ 76 (NC); Nutan Pandey v Air India, (2005) 3 CCC 96.
7 Ashima Roy Chowdury v United Airlines, (2001) 2 CPJ 263.
8 Express Travels v MR Shah, (2002) 3 CPJ 39 (NC).
9 Jet Airways (India) Ltd v Hari Mohan Bharadwaj, 2016 SCC ONLINE NCDRC 1003; Chief Commercial Officer, Indian Airlines v P Lalchand, (1996) 2 CPJ 61 (NC) : (1996) 2 CPR 164 (NC).
10 Inter Globe Aviation Ltd v N Satchidanand, (2011) 7 SCC 463 [LNIND 2011 SC 591]; Indian Airlines v VP Philip, (1997) 2 CPR 87 (NC).
11 Chief Commercial Officer, Indian Airlines v P Lalchand, (1996) 2 CPJ 61 (NC) : (1996) 2 CPR 164 (NC).
12 Air India v Nagar Kovothala, (2000) 1 CPR 159 (Ker).
13 P Gopinathan v Chairman, Air India, (1992) 1 CPJ 5 (NC) : (1992) 1 CPR 93 (NC).
Page 3 of 3[85.089] Instance of deficiency in service in air travel
14 Delta Airlines v Consumer Education and Research Society, (1997) 3 CPR 52 (NC).
15 Common Cause v UOI, (1996) 2 CPR 39 (NC).
16 Air India v Yogendra Hira Lal Parekh, (1996) 2 CPJ 116 (NC) : (1996) 2 CPR 66 (NC).
17 Indian Airlines Corp v Patel Ramubhai Shankar Lal, FA No 60 of 1991 decided on 10 December 1992.
18 Indian Airlines, Delhi v SN Seth, FA No 495 of 1997 dated 17-7-1997; Mohinderjit Singh Sethi v Indian Airlines, (2003) 2 CPJ 205 : (2003) 1 CPR 89 (NC).
19 LR Gupta v Singapore Airlines Ltd, (2001) 1 CPJ 443.
20 Ie Indian Airlines, Cancellation and Refund Regulations 1985 regulations 2 and 8.
21 Indian Airlines Ltd v N NKini, (2001) 2 CPR 22 (NC); Accounts Officer, Indian Airlines Ltd v NL Lokhanpal, (2001) 3 CPJ 43 : (2001) 2 CPR 78 (NC).
22 Delta Airlines Inc v Consumer Education and Research Society, (1997) 3 CPR 52 : (1997) 5 CTJ 816 (NC).
23 Ravneet Singh Bagga v KLM Royal Dutch Airlines, (2000) 1 SCC 66 [LNIND 1999 SC 999] : (2000) 1 CPR 72 : (1999) 3 CPJ 28.
24 Indian Airlines v SN Sinha, (1992) 1 CPJ 62 (NC) : (1992) CPC 85 : (1991) 1 CPR 213 (NC); US Awasthy v Gulf Air, (2003) 4 CPJ 114 (NC).
25 K Ravindran v Singapore Airlines Ltd, (1992) 2 CPR 694 : (1992) 2 CPJ 536 (NC) : (1992) CPC 677 (NC).
26 GeetaJethani v Airport Authority of India, (2004) 3 CPR 61 (NC).
27 Station Manager Indian Airlines v JiteswarAhir, (1996) 4 CTJ 497 : (1996) 1 CPR 152 (NC).
28 Gargi Parsai v KLM Royal Dutch Airlines, (2003) CTJ 673 : (2003) 2 CPC 40 : (2003) 2 CPR 1 (NC).
29 Jaswant Rai Chopra v Air Canada, (2005) 2 CCC 55.
30 Rajinder Paul Jawra v Secretary, UOI, (2002) 2 CLD 1771 : (2003) 1 CPJ 24 (NC).
31 Arun Jain v Thai International Ltd, OP No 80 of 1997 decided on 21 March 2002 (NC).
32 Indian Airlines Corp v Consumer Education and Research Society, Ahmedabad, (1992) 1 CPR 4 : (1992) CPC 139 (NC); Manager, Air India Ltd v A MoideenKutty, (2003) 1 CPJ 65 : (2002) 2 CPR 4 (NC).
33 Indian Airlines v Rajesh Kumar Upadhyaya, (1991) 1 CPJ 206 : (1991) CPC 66 : (1991) 1 CPR 46 (NC).
34 Ie by the Carriage by Air Act, 1972 section 5.
35 Aruna Mishra v Managing Director, Indian Airlines, (2001) 2 CPJ 71 : (2001) 2 CPR 81 (NC).
36 RamJoshi v Lufthansa German Airlines, 2015 SCC ONLINE NCDRC 3169.
End of Document
[85.090] Loss of or damage to baggage during flightHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > B. Air Travel
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
B. Air Travel
[85.090] Loss of or damage to baggage during flight
Where the contents of the baggage are not mentioned in the receipts, the complaint may not be maintained1. In the case of loss of baggage the passenger may not be granted higher amount over and above limited liability2. In case of delay in receipt of baggage, passenger is entitled to damages3. When consigned fails to take delivery, carrier is not liable for loss4.
Period of limitation prescribed under the Carriage by Air Act, 19725may not be extended with reference to the Consumer Protection Act, 19866. It is mandatory to issue notice as required under the Carriers Act, 18657. Factors beyond the control of the airlines, such as bomb threat, will absolve the airlines of any liability for alleged deficiency in service8. Food served on flight with broken glass pieces embedded in food articles totally unfit for consumption is clear deficiency in service9Carrier is liable when there is delayed delivery of goods by carrier10.
1 Pakistan International Airlines v Sanjeev Wadhwa, (2003) 1 CPJ 54 (NC).
2 Helen Walia v Cathay Pacific Airway Ltd, (2002) 3 CPJ 190 (NC).
3 Aeroflot Russian International Airlines v Inderjit Singh Jaijee, (1999) 1 CPJ 155.
4 Delta Airlines Inc. v Haresh Babubhai Daruwalla, (2010) 14 SCC 775
5 Ie under the Carriage by Air Act, 1972 rule 30 (1).
6 Ie with reference to the Consumer Protection Act, 1986 section 24A; see also Govind S Poddar v Cathay Pacific Airways Ltd, (2003) 1 CPC 31 : (2003) 2 CPR 187 : (2002) 3 CPR 187 (NC); M Duraiswamy v General Manager, KLM Dutch Airlines, (2003) 1 CPC 218 : (2002) 3 CPJ 344 (NC).
7 Ie under the Carriers Act, 1865 section 10; see also Delhi Assam Roadways Corp Ltd v BL Sharma, FA No 107 of 2001 dated 7-3-2001 (NC).
Page 2 of 2[85.090] Loss of or damage to baggage during flight
8 Gulab Hotchand Bhagchandaney v Egypt Airlines, (1994) 3 CPR 383 : (1995) 3 CTJ 309 (NC).
9 Lufthansa German Airlines v Rish Bajoria, Supreme Court and National Commission on Consumer Protection Law, Vol 3, p 172 (NC).
10 Trans Mediterranean Airways v Universal Exports Ltd, (2011) 10 SCC 316 [LNINDORD 2013 SC 16161].
End of Document
[85.091] All risk insurance policyHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
[85.091] All risk insurance policy
Where only cover note and schedule of insurance policy are supplied and other terms and conditions, including the exclusion clause, are not communicated, the insurance company would be liable since the fundamental principle of insurance law is that utmost good faith must be observed by both parties and good faith forbids either party not disclosing facts which the parties knew1.
In the case of contractors’ all risk insurance policy, where in respect of road work covered by policy, the road develops cracks and repair cost and damages are claimed, the insurer is liable to reimburse loss, damage, destruction of property by any cause except causes specifically excluded2.
1 Contship Container Lines Ltd v DK Lall, (2010) 4 SCC 256 [LNIND 2010 SC 246] : AIR 2010 SC 1704 [LNIND 2010 SC 246]; Modern Insulators Ltd v Oriental Insurance Co Ltd, AIR 2000 SC 1014 [LNIND 2000 SC 356]: (2002) 2 SCC 734 : (2000) 1 CPC 596 : (2000) 1 CPR 93 (SC) : (2000) 1 CPJ 1 [LNIND 2000 SC 356] (SC).
2 M Sitarama Reddy v United India Insurance Co Ltd, OP No 67/96 decided on 13 July 2005.
End of Document
[85.092] Duties of persons seeking insurance policyHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
[85.092] Duties of persons seeking insurance policy
It is the look out of the person seeking loan on mortgage from financial institutions to ensure that the property is comprehensively insured and that the premium are promptly paid and may not put the blame on the financial institution for omission in the payment of premium alleging deficiency in service when calamities like fire break out and cause damage1.
1 Haryana Financial Corp v Novelty Spinning Mills Pvt Ltd, R P No 1320 of 2002 decided on 17 May 2004.
End of Document
[85.093] Commencement of insurance policyHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (A) Generally
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(A) Generally
[85.093] Commencement of insurance policy
The insurance contract and the insurance coverage would commence from the date of acceptance of premium and the company may not repudiate a claim on the ground that premium was not received in advance as provided in the Insurance Act, 19381 and that their officers had accepted the premium inadvertently without powers, in violation of the provisions of the aforesaid enactment2 and hence the contract of insurance was void3. The policy commences on the same day from the date of risk cover and if the insured commits suicide after the expiry of one year from the date of risk cover, there is no violation of the policy conditions and the company may not repudiate the claim under the policy4.
Where the insurance company gave an option to the complainant to indicate whether the policy of his minor daughter was to be backdated, and the complainant so desired and also paid the premium for that period and the insured committed suicide, the date of policy, will mean the date on which the policy was issued and not the date on which the risk under the policy had commenced5. Where the insurance policy is obtained on the date of the accident, unless it mentions the time of its commencement it becomes operative from the commencement of the day that is from midnight6.
Where the complainant had informed his place of business and location to his bank and the bank in their turn had notified the insurance company and this is established by clear evidence, the insurance company may not escape liability by pleading that it had not provided insurance cover when the stock of the complainant was looted and a claim was made7.
Page 2 of 3[85.093] Commencement of insurance policy
Where the accident or loss occurs before receipt or realisation of premium or after cancellation of policy there is no liability for the insurer8. On the contrary if the premium is received and policy is not issued, the insurer is answerable9. For liability to be fastened contract of insurance must have come into existence10 and there must have been a concluded contract which would be only when the party to whom the offer has been made accepts it unconditionally and communicates its acceptance to the person making the offer11. In case of insurance policies silence does not denote consent and no binding contract arises until the person to whom the offer is made says or does something to signify his acceptance12. Mere delay in giving an answer may not be construed as an acceptance as prima facie acceptance has to be communicated to the offerer13. The insurer however, would be liable if a wrong policy is issued14 or the terms of policy are not made known or made known after the incident15, or when an incomplete policy, for instance, date of commencement not filled up is issued16.
Where the policy is renewed whether in time or during grace period, conditions in earlier policies would apply17. Where the insured dies within the grace period and prior to the payment of last premium instalment, there is no default18 insurance company may not claim additional premium for lapsed policies as a condition precedent for making settlement of the assessed loss19. Where an insured sends his premium cheque on a particular day after the grace period had expired dies the very next day but the insurance company without knowledge of the death, encashes the cheque, there is no liability as there may be no revival after lifetime of insured20. Where the premium is not paid in time or the cheque issued towards premium for policy bounced, the insurance company is not liable21.
Where there is acceptance of the premium by the insurance company for several months without notifying the insured or his employer there is clear deficiency of service on the part of the insurance company and it would be liable22. Where the insurance company is to escape liability on account of exclusion there must be specific mention in the policy of such exclusion23. Not believing a claim for want of proof is different from making false declaration in support of claim24.
1 Ie as provided in the Insurance Act, 1938 section 24UB.
2 Ie in violation of the Insurance Act, 1938 section 24UB.
3 Soya Udyog Ltd v United India Insurance Co Ltd, (2004) 3 CPR 117 (NC).
4 Life Insurance Corp of India v Vimal Kumar Mittal, (2002) 2 CPJ 66 (NC) : (2003) 1 CPR 11 (NC).
5 Life Insurance Corp of India v Dharam Vir Anand, (1998) 7 SCC 348 [LNIND 1998 SC 946] : (1998) 3 CPJ 3 (SC); see also Life Insurance Corp of India v Mani Ram, AIR 2005 SC 3349 [LNIND 2005 SC 585]: (2005) 6 SCC 274 [LNIND 2005 SC 585] : (2005) 126 Comp Cas 95; Life Insurance Corp of India v Vimal Kumar Mittal, (2002) 2 CPJ 66 : (2003) 2 CPC 288 : (2003) 1 CPR 11 (NC).
6 Oriental Insurance Co v P Ramaraj, (1996) 2 CPR 19 (NC); New India Assurance Co Ltd v Ram Dayal, (1990) 2 SCC 680 [LNIND 1990 SC 257] : (1990) SCC (Cr) 432 : (1990) 68 Comp Cas 580.
7 Mohd Parvez Alam v Branch Manager, National Insurance Co Ltd, (2002) 3 CPJ 84 : (2002) 3 CPR 46 (NC); Mohd Nasheruddin v Branch Manager, National Insurance Co Ltd, RP No 2901/2002 decided on 24 May 2004; Jagdish Singh v The National Insurance Co Ltd, (1994) 1 CPJ 172 (NC)(the National Commission observed that the insurance company might not repudiate the claim of the insured on the ground, that it had issued a wrong policy and the building collapsed on account of typhoon is not covered under the policy); Snehlata Aggarwal v Life Insurance Corp, (1995) 2 CLP 431 (NC)(the complainant claim was repudiated by the respondent on the grounds of suppression of material fact that the complainant had not disclosed the insurer that the assured was already a patient of pulmonary tuberculosis and cirrhosis of the lever. After hearing both sides, National Commission came to the finding that clearly from the evidence it is seen that the assured had suppressed material facts. Where these facts have been disclosed to the insurer at the time of the submission of the proposal, it is most unlikely that the insurer would have accepted the proposal and undertaken to insure of the deceased).
New India Assurance Co Ltd v Bharat Watch Co, (1997) 1 CLP 390 : (1996) 3 CPR 171 (the complainant assured the shop and the stock therein and there was theft of cash and wrist watches from the shop and the claim made to the insurance company. Loss was assessed by the surveyor and the complainant supplied details of stolen stock and watches to the surveyor. However, the amount offered by respondent to the complainant was less and the same was refused by the complainant. Insurance company in appeal before National Commission submitted that the claim made by the appellant may not be accepted because the stock register was not maintained. After hearing both sides, National
Page 3 of 3[85.093] Commencement of insurance policy
Commission observed that the submissions made by the insurance company may not be accepted merely because stock register was not maintained by the complainant and hence the appeal was refused).
8 Dugar Rice and General Mills v National Insurance Co, (2004) 2 CPJ 18 (NC); Bam Dev v United India Insurance Co Ltd, (1997) 5 CTJ 422 : (1997) 1 CPC 429 : (1997) 1 CPR 95 (NC); New India Assurance Co Ltd v Kumod Chandra B Hemade, (1998) 6 CTJ 658 : (1996) 3 CPR 41 (NC); Vijay Kumar Kishan Gopal Bankers and Commission Agents of Kurukshetra v United India Insurance Co Ltd, (1995) 2 CPR 187 : (1995) 2 CPC 175 (NC); Anthony Rebello v New India Assurance Co Ltd, (1996) 2 CPC 272 : (1996) 2 CPJ 92 : (1996) 2 CPR 8 (NC).
9 Life Insurance Corp of India v VJeeva, (1995) 3 CPJ 1 : (1996) 4 CTJ 107 (NC); Oriental Insurance Co Ltd v Dawood Kumar Taj, (1998) 3 CPR 49 : (1999) 1 CPJ 14 (NC).
10 National Trading Corp v UCO Bank, (1995) 2 CPC 511 : (1995) 2 CPJ 114 : (1995) 3 CPR 18 (NC).
11 Life Insurance Corp of India v Vasi Reddy Komalavalli Kamba, AIR 1984 SC 1014 [LNIND 1984 SC 94]; Life Insurance Corp of India v K Aruna Kumari, (1995) 3 CPR 62 (NC).
12 See note 11 above.
13 See note 11 above.
14 New India Insurance Co Ltd v KS Bhantia, (2002) 3 CPJ 42 (NC); Oriental Insurance Co Ltd v BK Sethi, (2004) 3 CPJ 11 (NC).
15 National Insurance Co Ltd v Suman Oil Industries, (2003) 2 CPJ 173 (NC); Rajendra Plastics v New India Assurance Co Ltd, (2004) 2 CPJ 19 (NC); Rama Seshasya Raw and Boiled Rice Mills v The United India Insurance Co Ltd, (1993) CPC 193 : (1993) 1 CPJ 56 (NC).
16 National Insurance Co Ltd v Suman Oil Industries, (2003) 2 CPJ 173 (NC); Rajendra Plastics v New India Assurance Co Ltd, (2004) 2 CPJ 19 (NC); Rama Seshasya Raw and Boiled Rice Mills v The United India Insurance Co Ltd, (1993) CPC 193 : (1993) 1 CPJ 56 (NC); Life Insurance Corp of India v T Balaiah Chodari, (2004) 1 CPC 483 : (2004)(1) CPJ 67 (NC).
17 Jaswinder Singh v New India Insurance CoLtd, (2004) 3 CPR 145 (NC); Raksha Goyal v Senior Divisional Manager, Life Insurance Corp, (1997) 2 CPC 32 (it was observed that in the absence of any specific material, ground of taking medical leave as such, may not be considered sufficient to deny the relief. The insurance company had not produced true copies of the original documents in that case and the district forum in the facts of the present case rightly came to the conclusion that there was deficiency in rendering service on the part of the corporation in not settling the claim and we affirm the finding).
18 PMG Haryana Circle v Naraini Devi, (2001) 3 CPR 188 (NC).
19 National Insurance Co Ltd v New Bharat Rice Mills, (1997) 2 CPR 48 : (1997) 5 CTJ 778 : (1997) 2 CPC 166 : (1997) 2 CPJ 77 (NC).
20 M Kanagavalli v Divisional Manager, Life Insurance Corp of India, (2004) 1 CLT 224 : (2004) 1 CPC 409 : (2003) 4 CPJ 143 : (2004) 1 CPR 1 (NC).
21 The Secretary, Krushi Utpanna Bazar Samiti v Life Insurance Corp of India, RP No 971/1998; Divisional Manager, Oriental Insurance Co Ltd v Sanjaya Kumar Panigrahi, (2004) 3 CPR 49 (NC).
22 RajniPatwar v Life Insurance Corp of India, (1997) 2 CPR 254 : (1997) 2 CPC 388 : (1997) 3 CPJ 48 (NC).
23 United India Insurance Co Ltd v Lal Singh, (2005) 1 CPJ 66 (NC); Delkon India Pvt Ltd v The Oriental Insurance Co Ltd, (1994) 2 CTJ 691 (NS); Ram Naresh Sinha v Divisional Manager, Life Insurance Corp of India, (1996) 1 CPR 6 : (1996) 1 CPC 203 : (1996) 1 CPJ 130 (NC).
24 Ravindranath Fruit Canning Industries Pvt Ltd v United India Insurance Co Ltd, (2006) 1 CPJ 98 (NC).
End of Document
[85.098] When the repudiation will not be justifiedHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (B) Violation and Repudiation of Insurance Policy
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(B) Violation and Repudiation of Insurance Policy
[85.098] When the repudiation will not be justified
Repudiation will not be justified in the following illustrative cases:
(1) when there is report of the electrical engineer on record that the fire was caused due to internal short circuit and had not been engineered by the complainant1;
(2) fire taking place at the insured location and the records also show that the insurer had been dealing only with the new partnership running its business at the place of fire accident2;
(3) exclusion of fire resulting from spontaneous combustion not communicated to the complainant3;
(4) renewal of policy which covered stock in process and in the fire accident, they get destroyed, the insurer taking a stand that they are not covered4;
(5) mistake by the employees of the insurer in issuing wrong policies5;
(6) onus on the insurer that the fire was engineered is not discharged6.
(7) stock certificate issued by bank may not be doubted as a manipulated one, without any plausible explanation to do so7.
(8) insured is covered by the policy even after the marine policy is assigned to a third party8.
(9) the vehicle is covered for personal use but was hired as per the guidelines of the company 75% of the claim awarded9.
Page 2 of 2[85.098] When the repudiation will not be justified
(10) when there is transit risk insurance, both the insurer as well as the carrier are jointly liable to compensate the insured10.
(11) no repudiation even if fire is of short duration due to short circuiting11.
(12) policy covers non delivery of goods, insurer liable even if goods are lost to fire in transit12.
(13) marine insurance covered warehouse to warehouse, pilferage and non delivery on land also13.
(14) nature of use of vehicle contrary to the policy conditions14.
1 PodarKnitex Ltd v New India Assurance Co Ltd, OP 25/96; MP Forest Produce Trading and Development Co-op Federation v National Insurance Co Ltd, (2000) 3 CPR 43 : (2000) 3 CPJ 7 (NC); National Insurance Co Ltd v Venkateswara Solvents Extractions Pvt Ltd, (2002) 3 CPR 48 : (2002) 3 CPJ 86 (NC).
2 Sri Venkateswara Syndicate v Oriental Insurance Co Ltd, (2004) 1 CPR 87 (NC).
3 National Insurance Co Ltd v Suman Oil Industries, (2003) 1 CPR 120 (NC).
4 Jaswinder Singh v New India Assurance Co, (2005) 1 CPR 56 (NC); New India Insurance Co v PP Khanna, (1997) 2 CPR 22 (NC) : (1997) 2 CPJ 1 (NC) (National Commission has observed that onus probandi in case of fraudulent suppression of material facts in contract of insurance rests heavily on insurer and Life Insurance Corporation has not led direct evidence to prove that the insured/deceased committed suicide. Where produced, any such witness would have been subjected to test of cross-examination in a court. The complainant is entitled to the insured amount and is also entitled to compensation as the insured amount was not promptly paid to the complainant and further the compensation is granted by way of interest on account of delayed settlement of the claim at the rate of 18% per annum).
5 Oriental Insurance Co Ltd v BK Sethi, (2004) 3 CPJ 11 (NC).
6 United India Insurance Co Ltd v National Textiles Corp Ltd, FA No 263 of 1995; Sudhakar Traders v National Insurance Co Ltd, (2005) 4 CPJ 25 (NC).
7 New India Assurance Co Ltd v Kohinoor Sizing Factory, (2006) 2 CPJ 237 (NC).
8 United India Insurance Co Ltd v Leisure Ware Exports Ltd, (2016) 11 SCC 348 [LNIND 2016 SC 261] : AIR 2016 SC 3145 [LNIND 2016 SC 261]: III (2016) CPJ 11 (SC).
9 Amalendu Sahoo v Oriental Insurance Co Ltd, (2010) 4 SCC 536 [LNIND 2010 SC 274] : AIR 2010 SCC 2090.
10 United India Insurance Co Ltd v Kantika Colour Lab, (2010) 6 SCC 449 [LNIND 2010 SC 453].
11 New India Assurance Co Ltd v Zurari Industries Ltd, (2009) 9 SCC 70 [LNIND 2009 SC 1756].
12 Metal Power Co Ltd v OrietntalInsurance company Ltd, (2014) 5 SCC 771 [LNINDU 2014 SC 6] : IV (2014) CPJ 9 SC.
13 New India Assurance Co Ltd v Hira Lal Ramesh Chand, (2008) 10 SCC 626 [LNIND 2008 SC 1301] : AIR 2008 SC 2620 [LNIND 2008 SC 1301]: 2008 9 Scale 105 [LNIND 2008 SC 1301].
14 National Insurance Co Ltd v Nitin Khandelwal, (2008) 11 SCC 259 [LNIND 2008 SC 1113].
End of Document
[85.099] When repudiation is justifiedHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (B) Violation and Repudiation of Insurance Policy
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(B) Violation and Repudiation of Insurance Policy
[85.099] When repudiation is justified
Cases when repudiation is justified and there is no deficiency in service are follows:
(1) the claim is settled as per the terms of the policy1;
(2) removal of damaged goods in breach of the contract2;
(3) payment of market value of the car on the date of the accident3;
(4) policy becoming inoperative on account of any enactment of state4;
(5) premium amount not paid in time5;
(6) non-delivery of consignment on account of misappropriation by the transporters where the consignment is covered by marine cargo inland transit policy6;
(7) voluntary discharge of discharge voucher7;
(8) settlement of claim based on surveyor’s report which is found to be reasonable and proper8;
(9) damage excluded by the terms of the policy, for instance, the complainant while taking delivery of goods failed to verify whether the goods are damaged9;
(10) complainant failing to prove that loss occurred on account of risk covered10;
(11) suppression of material facts11;
Page 2 of 3[85.099] When repudiation is justified
(12) carriage of hazardous goods contrary to the terms of the policy12;
(13) vehicle driven by driver not eligible to hold licence13 or carrying unauthorised passengers14;
(14) insurance policy obtained fraudulently15;
(15) policy lapsed16;
(16) pilferage after delivery of consignment17.
(17) contra proferentem rule will not apply if there is no ambiguity in policy18.
(18) complainant failing to disclose every dispatch as per special condition in transit insurance19.
(19) violation of policy condition that the boat should fish in the coastal waters of Andhra Pradesh20.
(20) failure to observeUberrimaeFidei21.
(21) loss caused by the apprentice who was not an employee22.
1 Inder Raj Anand v Citi Bank, OP No 26 of 1996 decided on 16 July 2004.
2 United India Insurance Co Ltd v Suraj Mal Ram Niwas Oil Mills Pvt Ltd, (2002) 3 CPR 147 (NC).
3 New India Assurance Co Ltd v GP Malhotra, (2002) 1 CPR 83 (NC).
4 Life Insurance Corp of India v Sampooran Singh, (1992) 1 CPR 436 : (1992) 1 CPJ 165 : (1992) CPC 383 (NC).
5 The Secretary KrushiUtpanna Bazaar Samiti v Life Insurance Corp of India, RP No 971 of 1998.
6 Anil Textiles v Ajantha Transport Co, (1993) 3 CPR 195 : (1994) 1 CPC 142 (NC).
7 United India Insurance v Ajmer Singh Cotton and General Mills, AIR 1999 SC 3027 [LNIND 1999 SC 683]: (1999) 6 SCC 400 [LNIND 1999 SC 683] : (1999) 3 CPR 53 (SC) : (1999) 2 CPC 601.
8 Chellur Satellite Communication System Ltd v United India Insurance Co Ltd,(1994) 1 CPR 33 : (1994) 1 CPC 425 : (1993) 3 CPJ 417 (NC).
9 Whirlpool India Ltd v New India Assurance Co Ltd, OP No 355 to 358 of 2001; United India Insurance Co Ltd v Navarathan Kothari, (1996) 1 CPC 460 : (1996) 1 CPR 106 : (1998) 1 CPJ 42 (NC).
10 Gravity Crimpers v United India Insurance Co Ltd, (2003) 2 CPC 270 : (2003) CTJ 108 : (2003) 1 CPJ 14 (NC); VijayaJuneja v United India Insurance Co Ltd, (1995) 1 CPC 320 : (1995) 1 CPJ 6 : (1995) 3 CTJ 204 : (1995) 1 CPR 209 (NC); National Insurance Co Ltd v Thiruvalluvar Silk Cotton Industries, (1995) 3 CPJ 82 (NC); Master Trust Ltd v National Insurance Co Ltd, (2004) 3 CPJ 33 (NC); National Insurance Co Ltd v Winner Chlorates Pvt Ltd, (2004) 2 CPJ 1 (NC).
11 National Insurance Co Ltd v Satya Pal Tuli, (2003) 3 CPR 33 : (2003) 4 CPJ 98 : (2004) 1 CPC 10 (NC); Life Insurance Corp of India v Sanjeev Mahendralal Shah, (1996) 1 CPR 129 : (1998) 1 CPJ 45 (NC)(it was observed that the insured was not required to disclose casual ailments not requiring any treatment or consultation with a medical doctor at the time of submission of the proposal for obtaining insurance policy); Satwant Kaur Sandhu v New India Assurance Co Ltd, 2009 8 SCC 316 [LNIND 2009 SC 1435].
12 Oriental Insurance Co Ltd v Sony Cherian, AIR 1999 SC 3252 [LNIND 1999 SC 715](SC) : (1999) 6 SCC 451 [LNIND 1999 SC 715] : (1999) 2 CPJ 13 [LNIND 1999 SC 715].
13 Salvadar Rodrigues Margo v New India Assurance Co Ltd, (2005) 1 CPJ 71 (NC), National Insurance Co Ltd v Meena Aggarwal, (2009) 2 SCC 523 [LNIND 2009 SC 2797]
14 New India Assurance Co Ltd v A Mohammed Yasin, (1995) 3 CPR 46 : (1995) 2 CPC 567 : (1995) 3 CPJ 50 (NC).
15 Waseem Ahmed v Oriental Insurance Co Ltd, (2003) 2 CPJ 174 : (2003) 1 CPR 115 (NC).
16 Life Insurance Corp of India v Jaya Chandel, (2008) 3 SCC 382 [LNIND 2008 SC 272]. Amita Rastogi v Life Insurance Corp of India, (2003) 1 CPJ 193 (NC).
17 United India Insurance Co Ltd v Navrathan Kothari, (1996) 1 CPC 460 : (1996) 1 CPR 106 : (1998) 1 CPJ 42 (NC).
18 United India Insurance Co Ltd v Orient Treasures Pvt Ltd, (2016) 3 SCC 49 [LNIND 2016 SC 17] : AIR (2016) SC 363 [LNIND 2016 SC 17]: I (2016) CPJ 6 (SC).
19 Surat Mal Nivas Oil Mills Pvt Ltd v United India Insurance Co Ltd, 2010 (10) SCC 567 [LNIND 2010 SC 983].
Page 3 of 3[85.099] When repudiation is justified
20 Kokkilagadda Subba Rao v Divisional Manager, United India Assurance Co Ltd, 2014 (16) SCC 467 : (IV) 2014 CPJ 18 SC : 2014 (5) JT 480.
21 Contship Container Lines Ltd v DK Lall, 2010 (4) SCC 256 [LNIND 2010 SC 246] : AIR 2010 SC 1704 [LNIND 2010 SC 246].
22 New India Assurance Co Ltd v AbhilashJewellry, 2009 (2) SCC 661 [LNIND 2009 SC 135].
End of Document
[85.100] What amounts to violation of policy conditionsHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (B) Violation and Repudiation of Insurance Policy
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(B) Violation and Repudiation of Insurance Policy
[85.100] What amounts to violation of policy conditions
Terms of insurance contract have to be strictly construed without venturing into extra liberalism1 When loss is reported in a rail accident, but the consignment is removed without giving the surveyor an opportunity to assess the loss first hand, and the loss is further aggravated on account of improper care while transporting it by road after the accident, repudiation is proper2. Use of vehicle to carry unauthorised passengers is in violation of terms and conditions of policy as well as the permit and the insurance company is not guilty of deficiency in service3. There must be nexus established between violation of policy condition and cause of accident4. Where the driver is not in possession of a valid driving licence at the time of accident there may be direction to settle claim on non standard basis5. The light motor vehicle which is a non-transport vehicle there is no statutory requirement to have specific authorisation on the licence of the driver and if the vehicle concerned does not exceed weight stipulated for a light motor vehicle, there will be no violation of policy condition6. Where the driver was not eligible at the time he drove the vehicle and he was issued a licence than the repudiation would be justified7. Where application for renewal of licence is made more than 30 days after the date of its expiry, the driving licence will be renewed from the date of such renewal8. A person having licence for medium goods vehicle does not automatically become entitled to drive light motor vehicle9. Claims for accidents involving drivers with fake10 or invalid driving licences may be properly repudiated if the same is established11. Licence for driving light motor vehicle is sufficient for driving maxicab12. Once a person has licence to drive heavy goods carriage vehicle, it would mean he is entitled to drive transport vehicle13. International driving licence is a valid driving licence, and India is a party to the United Nations Conference on Road and Motor Transport which had issued the protocol, Final Act-Convention on Road Traffic Protocol concerning countries or territories at present occupied and the protocol on Road Signs and Signals14.
Page 2 of 2[85.100] What amounts to violation of policy conditions
1 Vikram Greentech India Ltd v New India Assurance Co Ltd, 2009 5 SCC 599 [LNINDORD 2009 SC 432]; National Insurance Co Ltd v Laxmi Narain Dhut, (2007) 3 SCC 700 [LNIND 2007 SC 275].
2 United India Insurance Co v Suraj Mal Ram Niwas Oil Mills Pvt Ltd, (2002) 3 CPR 147 (NC).
3 New India Assurance Co Ltd v A Mohammed Yasin, (1995) 3 CPR 46 : (1995) 2 CPC 567 : (1995) 3 CPJ 50 (NC); National Insurance Co Ltd v Suresh Babu, Supreme Court and National Commission on Consumer Protection Law, Vol 3, p 51 (NC).
4 United India Insurance Co Ltd v Surjit Singh Asai, (2000) 1 CPC 275 : (1999) 3 CPJ 79 : (2000) 1 CPR 11 (NC); National Insurance Co Ltd v ChandrappaVeerappaKaradagi, (2001) 3 CPR 191 : (2002) 1 CPC 209 (NC); National Insurance Co Ltd v Nabin Chandra Naik, (2006) 2 CPJ 249.
5 Oriental Insurance Co Ltd v Ramdhan Agarwal, (2003) 1 CPJ 204 (NC); National Insurance Co Ltd v Kusum Rai, (2006) 2 CPJ 8 (SC) : (2006) 3 SLT 162; New India Assurance Co Ltd v Suresh Chandra Aggarwal, (2009) 15 SCC 761 [LNIND 2009 SC 1523].
6 Ashok Gangadhar Maratha v Oriental Insurance Co Ltd, (1999) 6 SCC 620 [LNIND 1999 SC 772] : (1999) SCC (Cr) 1170 : (1999) 3 CPJ 5 [LNIND 1999 SC 772] (NC).
7 Salvador Rodrigues Margo v New India Insurance Co Ltd, 2005 (1) CPJ 71 (NC).
8 National Insurance Co Ltd v Manohar Lal Batra, (2004) 1 CPR 78 (NC) : (2004) 2 CPJ 57; New India Insurance Co Ltd v Jadav Narendrabai Jethabai, (1996) 1 CPC 170 : (1996) 1 CPJ 230 : (1996) 1 CPR 78 (NC); New India Assurance Co Ltd v Dipaksinh Baldevsinh Vihol, (2001) 1 CPJ 25A (NC).
9 United India Insurance Co Ltd v Jaya Rajendra Kumar Nanda, (2004) 1 CPR 6 : (2004) 1 CPJ 25 (NC); Prabhakar Transporters v National Insurance Co Ltd, (2003) 2 CPC 568 : (2003) 3 CPJ 125 (NC); Iqbal Hussain Quazi v New India Insurance Co Ltd, (2002) 2 CPR 80 : (2002) 2 CPC 303 : (2002) CTJ 624 (NC).
10 Raj Kumar v New India Assurance Co Ltd, (1996) 1 CPR 81 (NC); Oriental Insurance Co Ltd v Ashok, (1995) 2 CPR 258 (NC); National Insurance Co limited v Om Prakash Jain, 2010 15 SCC 527 [LNIND 2009 SC 1822].
11 Essma Felts Pvt Ltd v United India Insurance Co Ltd, (1995) 2 CPR 184 : (1995) 3 CTJ 538 : (1995) 2 CPC 153 (NC); New India Assurance Co Shimla v Kamala, (2001) 4 SCC 342 [LNIND 2001 SC 833] : (2001) SCC (Cr) 701 (NC); New India Assurance Co Ltd v Dinesh Bhatia, (2003) 1 CPC 318 : (2002) 3 CPJ 358 (NC); United India Insurance Co Ltd v Surendar Dutta Bhandari, (1994) 1 CPJ 168 (NC); United India Insurance Co Ltd v Arvinder Singh, (2006) 2 CPJ 230 (NC).
12 AR Geeta v Oriental Insurance Co Ltd, (2001) 2 CPC 671 : (2001) 3 CPR 39 (NC).
13 United India Insurance Co Ltd v Inder Singh Chauhan, (2006) 4 CPJ 15.
14 Renu Korrin v United India Insurance Co Ltd, (2002) 3 CPJ 305 (NC).
End of Document
[85.101] What amounts to breach of policy conditionsHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (B) Violation and Repudiation of Insurance Policy
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(B) Violation and Repudiation of Insurance Policy
[85.101] What amounts to breach of policy conditions
Where the insurance company does not follow up cover notes with issuance of policies, the insurer may not be imputed with knowledge of contents of the policies and consequently he may not be accused of violation of policy conditions1. Where the policy excludes considerable part of stock originally found in the cover note, it will be construed as a mala fide and fraudulent attempt to tailor the policy with a view to escape liability2. Unless any special exemption is incorporated in the terms and conditions of the policies, no violation of policy may be attributed to the complainant3. Where at the time of despatch of the consignment, the insurer did not complain of inadequate nature of packaging, it is not open to them to raise the issue after damage occurs as violation of policy condition4. Where the cleaner of the truck, when the driver falls ill absconds with the vehicle it may not be contended that it is a case of criminal breach of trust and not theft and try to escape liability5. Where the insurance company pleads breach of policy conditions that the complainant carried passengers on fare, and fails to prove the same by producing proper evidence, there is no violation of policy conditions and the insurer would be liable6. Asthe apprentice is not an employee, claim for loss caused by him can be repudiated7.Where the contract of insurance stipulates a time limit within which the claim is to be made and if this is not done, there is no liability as the relevant clause has the effect of extinguishing the liability also8. Where the clause in the policy requiring information to be furnished within 12 hours of the incident is to be construed as directory and not mandatory and omission by the insured may not be deemed to be, violation of policy condition9. Where the clause in the policy imposing a time limit within which the insured is to approach court is invalid and if the said direction is not followed there is no violation of policy condition10. In the context of insurance company, action would mean the legal and formal demand made by the insured for compensation from the company and if claim is made within 12 months of the occurrence of loss or
Page 2 of 2[85.101] What amounts to breach of policy conditions
damage it must be treated as pending action till decision is taken by the insurance company and the complaint made within 12 months from the date of repudiation will be in time11.
Whenever any exclusionary clause is contained in a policy it would be for the insurer to show that the case falls within the purview thereof12. The attempt must be to harmonise the main terms of the policy and the exclusion clause instead of allowing the latter to snipe successfully at the main purpose13.
1 Hundi Lal Jain Cold Storage and Ice Factory Pvt Ltd v Oriental Insurance Co Ltd, (2004) 3 CPR 3 (NC).
2 Oriental Insurance Co Ltd v Jai Puneet Wires, (2003) 1 CPJ 201 (NC).
3 United India Insurance Co Ltd v Lal Singh, (2005) 1 CPJ 66 (NC).
4 New India Assurance Co Ltd v Goel Exports, FA No 75 of 2002 decided on 6 May 2004.
5 Venkateswara Borewells v Oriental Insurance Co Ltd, (2002) 3 CPJ 308 (NC); Oriental Insurance Co Ltd v Rohit Kumar Gupta, (1994) 1 CPJ 196 (NC).
6 United India Insurance Co Ltd v Dashrath Lal Jethabhai Patel, (1996) 2 CPC 277 : (1996) 2 CPJ 77 : (1996) 2 CPR 5 (NC).
7 Abhilash Jewellery v New India Assurance Co Ltd, (2003) 1 CPR 85 : (2003) 1 CPJ 41 : (2003) 2 CPC 244 : (2003) CTJ 379 (NC) (Abhilash Jewellery v New India Assurance Co Ltd, 2003 1 CPR 85 : 2003 2 CPC 244 : 2003 CTJ 379 NC overruled in New India Assurance Co Ltd v Abhilash Jewellry, 2009 (2) SCC 661 [LNIND 2009 SC 135]).
8 National Insurance Co Ltd v Sujir Ganesh Naik and Co, (1997) 2 CPR 306 (SC).
9 Vijay Shrimp Farms and Exports Ltd v New India Assurance Co Ltd, (2002) 3 CPJ 293 (NC).
10 New India Assurance Co Ltd v KA Abdul Hameed, (2005) 2 CLT 219 (NC); Sujata Chemicals v United India Insurance Co Ltd, Supreme Court and National Commission on Consumer Protection Law, Vol 3, p 125 (NC).
11 National Insurance Co Ltd v Marthi Crystal Salt Co Ltd, (2000) 1 CPJ 55 : (2000) 2 CPR 1 (NC); Real LamintesPvt Ltd v The New India Assurance Co Ltd, (2005) 8 CCC 251; Oriental Insurance Co Ltd v KarurVysya Bank Ltd, (2001) 3 LW 866; see contra Shree Malaprabha Co-op Sugar Factory Ltd v New India Assurance Co Ltd, (2001) 1 CPC 130 : (2000) 2 CPJ 6 : (2000) 3 CPR 17 (NC); National Insurance Co Ltd v Sujir Ganesh Naik, AIR 1997 SC 2049 [LNIND 1997 SC 174].
12 National Insurance Co Ltd v Ishar Das Madan Lal, (2007) 4 SCC 105 [LNIND 2007 SC 204].
13 Skandia Insurance Co Ltd v Kokilaben Chandravadan, (1987) 2 SCC 654 [LNIND 1987 SC 359] : (1987) 1 ACC 413 (SC).
End of Document
[85.102] Settlement on basis of repair or total loss basisHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (C) Settlement of Claim
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(C) Settlement of Claim
[85.102] Settlement on basis of repair or total loss basis
Lodging grossly inflated and false claims would amount to misuse of machinery under the Consumer Protection Act, 1986 and has to be curbed by imposing heavy costs1. Unless there is irretrievable damage or extensive and it is not possible to carry out repairs and restore status quo ante2, settlement may not be on total loss basis but only on repair basis3. Where it is on repair basis, it must include the price for spare parts, incidental expenses and also interest if there is delay on the part of the insurer in settling the claim4.
1 Archana Strips Pvt Ltd v Oriental Insurance Co Ltd, (2002) 2 CPC 665 : (2002) CTJ 782 : (2002) 3 CPR 63 (NC); General Manager, Dynasty Walford Ltd v Oriental Insurance Co Ltd, (1999) 1 CPJ 70 (NC).
2 National Insurance Co Ltd v Sanjay Kumar Panigrahi, (2004) 3 CPR 49 (NC); KantikaColour Lab v United India Insurance Co Ltd, (2001) 3 CPR 36 (NC); Oriental Insurance Co Ltd v Giridhari Lal Tulsiramji Joshi, (1997) 1 CPR 91 : (1998) 6 CTJ 123 (NC); National Insurance Co Ltd v CU Ahmed Shafee, (2004) 2 CPJ 27 (NC); New India Assurance Co Ltd v Kailash Rai, (2002) 3 CPJ 141 (NC); New India Assurance Co Ltd v Ved Prakash Arora, (2002) 3 CPJ 361 (NC); United India Insurance Co Ltd v Bharat Kumar C Patel, (1993) 2 CPJ 143 : (1993) CPC 458 (NC); National Insurance Co Ltd v Ashok Kumar Mahajan, (2002) 3 CPJ 251 (NC).
Page 2 of 2[85.102] Settlement on basis of repair or total loss basis
3 Studio Synthesis v New India Assurance Co, (2002) 1 CPC 654 : (2002) 1 CPR 219 : (2002) CTJ 714 : (2003) 1 CPJ 85 (NC); M Lingan v United India Insurance Co Ltd, (2003) 2 CPJ (NC); National Insurance Co Ltd v Dinesh, (2002) 3 CPJ 390 : (2001) 2 CPR 107 (NC).
4 PS Muchandi v United India Insurance Co Ltd, (2000) 1 CPC 619 : (2000) 1 CPJ 49 : (2000) 1 CPR 59 (NC); United India Insurance Co Ltd v Consumer Protection Organisation, (1997) 1 CPR 4 : (1997) 1 CPC 248 : (1996) 3 CPJ 166 (NC); Oriental Insurance Co Ltd v Shakarbai Ramdas Marfatta, (1997) 2 CPR 45 (NC); New India Assurance Co Ltd v SK Pruthi, (1994) 3 CPR 105 : (1994) 3 CPJ 5 (NC); National Insurance Co Ltd v Kanchan Medicare and Research Centre Pvt Ltd, (2003) 2 CPC 594 : (2003) 3 CPJ 83 (NC).
End of Document
[85.103] Assessment of lossHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (C) Settlement of Claim
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(C) Settlement of Claim
[85.103] Assessment of loss
Where due to fire of short duration some instrument, machinery, furnishing, and the like, is heated such heating being capable of causing smoke, soot, and the like, will also fall within the meaning of the term fire1. Where there is fire, may be even for a short duration which affects the entire functioning of the factory premises, it may not be said that the loss is not covered by the policy2. Spontaneous conclusion need not be accompanied by flame3. It is not open to the insurer to plead that damage was caused due to autoheating4. Contract of insurance being a contract of utmost good faith, it is the duty of the insurance company to apprise the purchaser of fire policy about the special precautions to be taken by having a fire protection system as prescribed under the tariff advisory committee regulation and failure to do that amounts to want of good faith5. Where the conditions in the policy provide that the value of property insured is greater than the value of sum insured then the insured is to be considered to be insurer of difference and he has to bear rateable proportion of loss suffered because of breaking out of insured peril6. The loss has to be assessed on the basis of the formula in which the sum insured is divided by the value of risk multiplied by the loss assessed7. Assessment of loss on the basis of balance sheet is permissible in the absence of stock register which had got burnt in the fire accident8. Arbitrary reduction of the figure arrived at by the surveyor is deficiency in service9. Where the insurer commits intentional delay in settling the amount accepted by the complainant, he is liable to pay compensation by way of interest on the amount arrived at by the surveyor and accepted by the complainant10. Where the insurer does not honour the claim in respect of the policy for compensating any loss of business and profits consequent to the loss of building materials, and the like, it will amount to deficiency in service11. Proximate consequence of fire may also give rise to claim for compensation12. Machinery will include lab equipment also and there may be claim for compensation from the insurer if it is
Page 2 of 2[85.103] Assessment of loss
damaged by fire13. When a claim is made for total loss on account of fire, grant of a partial amount is deficiency in service14. Where the policy continued to be in existence the repudiation is deficiency in service15. It is not open to the insurer to repudiate a claim on the ground that the complainant did not have registration certificate as the same was within the knowledge of the insured at the time of issuing the policy16. Deduction will be justified when there is underinsurance17. Compensation should be given for medical expenses past and future, lost wages, pain and suffering, future care and inflationary trends18 while multiplier method was not accepted in calculating such a loss19.
1 Zuari Industries Ltd v New India Assurance Co Ltd, OP No 196/2001 decided on 26 March 2001.
2 See note 1 above.
3 Saraya Sugar Mills Ltd v United India Insurance Co Ltd, (1996) 2 CPJ 6 : (1996) 2 CPC 59 : (1996) 2 CPR 34 (NC); Roshan Lal Oil Mills Ltd v United India Insurance Co Ltd, (1992) 1 CPR 790 (NC); Azad Bharat Tobacco Factory v National Insurance Co Ltd, (1993) 1 CLP 555 : (1993) 2 CPJ 152 (the building, godown and stock kept therein was assured under the fire policy claim lodged for fire accident in the godown and the insurance company repudiated the claim lodged by the complainant. National Commission after hearing both sides came to the conclusion that complainant has failed to prove that the loss occurred on account of fire. Pre-requisite of fire is flame and the complainant has nowhere alleged that at any point of time flame or smoke was noticed in the godown or emanating from it and no fire brigade was called to extinguish the fire nor there is any allegation that the alleged fire was extinguished by employees of the firm hence, the complaint was dismissed).
4 See note 1 above.
5 Hanil Era Textiles v Oriental Insurance Co Ltd, (2001) 1 CPC 625 : (2001) 1 CPJ 1 (SC).
6 National Insurance Co Ltd v Utkal Forest Products Ltd, (2004) 1 CPR 19 (NC); United India Insurance Co Ltd v Automac Plastics Pvt Ltd, (2006) 2 CPJ 328 (NC).
7 See note 6 above.
8 Gajanand Goyal v New India Assurance Co Ltd, (1994) 1 CPR 39 : (1994) 1 CPC 431 : (1993) 3 CPJ 39 (NC).
9 Lumax Industries Ltd v United India Insurance Co Ltd, (1992) 2 CPR 445 (NC).
10 National Insurance Co Ltd v Lalchand Jain, (1997) 1 CPR 108 : (1997) 1 CPC 452 (NC).
11 Sirpur Paper Mills Ltd v National Insurance Co Ltd, (1998) 6 CTJ 263 : (1997) 2 CPR 81 (NC).
12 National Insurance Co Ltd v Pavar P Sahani, (1997) 1 CPR 159 (NC) : (1997) 1 CPC 664 : (1997) 2 CPJ 3 : (1997) 2 CLT 353.
13 SB Enterprises v National Insurance Co Ltd, (1994) 1 CPJ 62 : (1994) 1 CPC 429 : (1994) 1 CPR 96 (NC).
14 Oriental Insurance Co Ltd v Giridhari Lal Tulshiramji Joshi, (1997) 1 CPR 91 : (1998) 6 CTJ 123 (NC).
15 New India Assurance Co Ltd v Dalmia Cement (Bharat) Ltd, (2004) 1 CPJ 34 (NC).
16 Haji Bashir Ahmad v National Insurance Co Ltd, (2003) 3 CPJ 22 : (2003) 2 CPC 555 (NC) : (2004) CCC 211.
17 Sikka Papers Ltd v National Insurance Co Ltd, (2009) 7 SCC 777 [LNINDORD 2009 SC 674].
18 V Krishnakumar v State of Tamil Nadu, (2015) 9 SCC 388 [LNIND 2015 SC 381]; Jaswinder Singh v Santokh Nursing Home, (2012) 12 SCC 550.
19 Balram Prasad v Kunal Saha, (2014) 1 SCC 384 [LNIND 2013 SC 950] : (2013) 4 CPJ 1 (SC); Nizam’s Institute of Medical Sciences v Prasanth S Dhananka, (2009) 6 SCC 1 [LNIND 2009 SC 1292] : (2009) 2 CPJ 61 (SC) : (2009) 3 CPR 81 SC.
End of Document
[85.104] When full and final settlement may be madeHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (C) Settlement of Claim
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(C) Settlement of Claim
[85.104] When full and final settlement may be made
Where the insured accepts the amount settled by the insurer under the policy without objections and there is no allegation that the complainant was coerced to accept the claim there is no deficiency in service1. Where the discharge voucher was executed voluntarily and unconditionally and there is no allegation that it was executed under fraud, undue influence or misrepresentation2 there may not be any cause for complaint.But after accepting final settlement also claim is maintainable if the consumer proved that acceptance of a particular amount was under coercion3.
Where protest with regard to voluntary execution of the discharge voucher is made with reasonable expedition, complaints for deficiency in service would be maintainable4. Discharge vouchers given by complainants do not amount to relinquishment of their claim for interest and in respect of the same complaints are maintainable5. Where three contestants, that is, the bank, the insurance company and the complainant are in the arena, there may be no proper full and final settlement without the consent of the insured and behind his back6, and there must not be any coercive bargaining by the insurance company7. Where before giving high value policies and accepting premium, agents, development officers or engineers of the insurance company inspected and verified the status or condition of the articles or vessels or vehicles which are being insured a lot of harassment to the insured may be avoided8.
Page 2 of 2[85.104] When full and final settlement may be made
1 New India Assurance Co Ltd v Geetanjali Silk House, (1996) 2 CPR 15 (NC) : (1996) 2 CPC 65 : (1996) 2 CPJ 95 (NC).
2 United India Insurance v Ajmer Singh Cotton and General Mills, AIR 1999 SC 3027 [LNIND 1999 SC 683]: (1999) 6 SCC 400 [LNIND 1999 SC 683] : (1999) 3 CPR 53 (SC) : (1999) 2 CPC 601; Inventa Chemicals v United India Insurance Co Ltd, (2004) 1 CPR 107 (NC); Pooja Industries v United India Insurance Co Ltd, (1994) 2 CPJ 105 (NC); United India Insurance Co Ltd v K Gangadharan, (2002) CTJ 48 : (2001) 3 CPR 192 (NC); New India Assurance Co Ltd v Achhar Kumar Garg, (1996) 1 CPC 200 : (1996) 1 CPJ 140 : (1996) 1 CPR 4 (NC); Overseas Training Corp v National Insurance Co Ltd, (1995) 1 CPR 663 (NC); Sri Jayajyothi and Co v Oriental Insurance Co Ltd, (2002) 3 CPR 251 : (2002) 3 CPJ 179 (NC); Rahul Rubber Industries v New India Assurance Co Ltd, (2004) 1 CPJ 18 (NC).
3 National Insurance Co Ltd v Sehtia Shoes, (2008) 5 SCC 400 [LNIND 2008 SC 491] : (2008) 2 CPJ 16 (SC).
4 Karam Industries v Oriental Insurance Co, (2003) 2 CPC 343 : (2003) 2 CPR 60 (NC); New India Assurance Co Ltd v Shiv Khanna, (2004) 2 CPJ 51 (NC); Morinda Co-op Sugar Mills Ltd v New India Assurance Co Ltd, (2002) 2 CPJ 57 : (2002) 2 CPC 124 : (2002) 2 CPJ 57 : (2001) 3 CPR 92 (NC); Sri Jaya Jothi and Co v Oriental Insurance Co Ltd, (2002) 3 CPJ 179 (NC).
5 S Vellinayagam and Co v New India Insurance Co Ltd, (1992) 1 CPR 808 (NC); Asa Singh Cotton Factory v United India Insurance Co, (1993) 2 CPR 404 : (1993) 2 CPJ 203 : (1993) 1 CTJ 549 (NC); United India Insurance Co Ltd v Gurubachan Kaur, (2002) 2 CPJ 52 (NC) : (2002) 2 CPC 166 : (2002) CTJ 96 (NC); United India Insurance Co Ltd v Shivkhanna, (2004) 2 CPR 14 : (2004) 2 CPJ 51 (NC).
6 Branch Manager, New India Insurance Co Ltd v Vimal, (1999) 2 CPR 50 : (1999) 2 CPJ 34 (NC); New India Assurance Co Ltd v S JeyarajanThampi, (2003) 1 CPC 202 : (2002) 3 CPJ 349 (NC).
7 New India Assurance Co Ltd v S JeyarajanThampi, (2003) 1 CPC 202 : (2002) 3 CPJ 349 (NC); Bright Vision Pvt Ltd v National Insurance Co Ltd, (2006) 1 CPJ 121 (NC).
8 Priya Blu Industries v New India Assurance Co Ltd, (2003) 3 CPJ 94.
End of Document
[85.105] What amounts to delay in processing and settling the claimHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (C) Settlement of Claim
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(C) Settlement of Claim
[85.105] What amounts to delay in processing and settling the claim
Delay in processing and settling the claim is deficiency in service1 and interest may be allowed2, unless the delay is unavoidable3. Compensation awarded may be directed to be recovered from delinquent officers4. Even in cases where full and final settlement has been entered there may be complaint of delayed settlement5. There may be award for expenses and compensation for harassment and pain6.
1 Eiman Krishna Bose v United India Insurance Co Ltd, (2001) 2 CPC 427 : (2001) 2 CPR 1111 (SC); Shree Swastik Trading Co v Oriental Insurance Co Ltd, (2001) 1 CPR 97 : (2001) 2 CPC 127 (NC); National Insurance Co Ltd v Lalachand Jain and Sons, (1997) 1 CPR 108 : (1997) 1 CPC 452 (NC); Tanawala Synthetic Textile Ltd v Oriental Insurance Co Ltd, (1996) 2 CPR 53 : (1996) 2 CPC 91 : (1996) 3 CPJ 99 (NC); Ghai Agro Mills Ltd v New India Insurance Co Ltd, (1996) 2 CPR 105 : (1996) 2 CPC 213 : (1996) 3 CPJ 47 (NC); Maina Devi Bairalia v Life Insurance Corp, (1993) 2 CPR 399 : (1993) 1 CTJ 645 (NC); Avon Rice Trading Co v United India Insurance Co Ltd, (2002) 3 CPJ 340 : (2003) CTJ 110 : (2002) 3 CPJ 340 (NC); Ozma Shipping Co v Oriental Insurance Co Ltd, (2001) 3 CPR 14 : (2001) 2 CPJ 44 (NC).
2 Sushanta Kumar Roy v Oriental Insurance Co Ltd, (2003) 2 CPR 116 (NC); National Insurance Co Ltd v Lalachan Jain and Sons, (1997) 1 CPR 108 : (1997) 1 CPC 452 (NC); Rajeshwariben Upendra kumar Shah v Oriental Insurance Co Ltd, (1996) 2 CPR 176 : (1996) 2 CPJ 203 : (1996) 2 CPC 197 (NC); RK Industries v New India Assurance Co, (1995) 2
Page 2 of 2[85.105] What amounts to delay in processing and settling the claim
CPC 227 : (1999) 2 CPJ 87 : (1995) 2 CPR 410 (NC); United India Insurance Co Ltd v Srinivas Trading Co, (2002) 2 CPJ 111 (NC); VikramGreentech Ltd v New India Assurance Co, (2002) 3 CPJ 111 (NC).
3 Chellur Satellite Communication System Ltd v United India Insurance Co Ltd, (1994) 1 CPR 33 : (1994) 1 CPC 425 : (1993) 3 CPJ 417 (NC).
4 Lucknow Development Authority v MK Gupta, AIR 1994 SC 787 [LNIND 1993 SC 946]: (1994) 1 SCC 243 [LNIND 1993 SC 946] : (1994) 80 Comp Cas 719 : (1993) 3 CPJ 7 : (1994) 1 CPR 569 : (1994) 1 CLC 1; Padmasri Tobacco Co v New India Assurance Co Ltd, (2003) 2 CPC 231 : (2003) 1 CPR 172 : (2002) 2 CPJ 96 [LNIND 2002 NCDRC 135].
5 Asa Singh Cotton Factory v United India Insurance Co Ltd, (1993) 2 CPR 404 : (1993) 2 CPJ 203 : (1993) 1 CTJ 549 (NC); United India Insurance Co Ltd v Gurubachan Kaur, (2002) 2 CPJ 52 (NC) : (2002) 2 CPC 166 : (2002) CTJ 96 (NC); Ginni Filaments Ltd v New India Assurance Co Ltd, (1996) 2 CPC 215 : (1997) 5 CTJ 659 : (1996) 2 CTR 102 : (1998) 1 CPJ 54 (NC).
6 Jit Ram Shiv Kumar v National Insurance Co Ltd, (1993) 1 CTJ 465 : (1994) 1 CPJ 179 (NC); Shadi Ram Raghubir Sharan v National Insurance Co Ltd, (1993) 2 CPJ 150 : (1993) 1 CTJ 672 (NC).
End of Document
[85.110] Compensation in cases of total lossHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (D) Compensation Against Loss Suffered
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(D) Compensation Against Loss Suffered
[85.110] Compensation in cases of total loss
In the case of total loss, the complainant is entitled to settlement only on market value on the date of accident thereof as per its model and year and not the amount for which the vehicle was insured1. Compensation is to be awarded only after providing depreciation2. Where the property insured at the breaking out of any peril is of greater value than the sum insured, following would be the consequences:
(1) insured to be considered as his own insurer for the differences of value; and
(2) insured will bear a rateable proportion of the loss because of insured peril3. Under the provisions of the Marine Insurance Act, 19634, in the case of a, valued policy, the insurer as well as the insured are tied down by the agreed valuation fixed at the time of entering into contract of insurance and the insurer will be accordingly liable5
Insurance Company justified in excluding parts of machinery which were required to be replaced due to normal wear and tear6.
1 M Lingam v United India Insurance Co Ltd, (2003) 2 CPJ 26 (NC); United India Insurance Co Ltd v Himachal Pradesh State Civil Supplies Corp, (2006) 4 CPJ 419; United India Insurance Co Ltd v Saurabh Resorts Pvt Ltd, (2004) 3 CPJ 16 (NC); Oriental Insurance Co Ltd v Suresh Arjun Karande, (1992) 1 CPR 431 : (1992) 2 CPJ 484 : (1992) CPC 225 (NC); New India Assurance Ltd v Inderjeet Kaur, (2003) 1 CPR 149 (NC).
Page 2 of 2[85.110] Compensation in cases of total loss
2 National Insurance Co Ltd v Anil Lamba, (2003) 1 CPJ 229 (NC).
3 Life Insurance Corp of India v AhilBharatiya Graha Panchayat, (1992) 1 CPJ 27 (NC).
4 Ie under the Marine Insurance Act, 1963 section 29.
5 Sitha Vedanayagam v New India Assurance Co Ltd, (1995) 1 CPJ 41 (NC).
6 Sikka Papers Ltdv National Insurance Co Ltd, (2009) 7 SCC 777 [LNINDORD 2009 SC 674].
End of Document
[85.111] When insurance company is liable for the default of its agentHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (E) Insurance Company and its Agents
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(E) Insurance Company and its Agents
[85.111] When insurance company is liable for the default of its agent
General principles of agency are attracted in cases where the employer has an implied authority to collect premiums and acts as an agent of the insurer and if default is committed by the employer by omission to deduct premium resulting in lapse of policy the insurer as principle would be liable1. Where the insurer fails to notify the insured regarding the lapse of premium, there is deficiency in service on his part2. Payment made to insurance agent amounts to payment made to the insurer3. However, then the agent has no authority to collect any money in his name or to accept any risk for and on behalf of the insurer4.
1 DESU v Basanti Devi, AIR 2000 SC 43 [LNIND 1999 SC 873]: (1999) 8 SCC 229 [LNIND 1999 SC 873] : (1999) 98 Comp Cas 695 SC : (1999) 3 CPJ 15 [LNIND 1999 SC 873] : (2000) 1 CPC 42 : (1999) 3 CPR 91; Central Bank of India v HeeraSoni, (2005) 3 CPJ 27 (NC); The Secretary KrushiUtpanna Bazaar Samiti v Life Insurance Corp of India RP No 971/1998; Life Insurance Corp of India v Anupam, (2003) 3 CPJ 85 (NC); C Rajeswari v Life Insurance Corp of India, (2000) 1 CPR 57 (NC); Executive Engineer, Environmental Engineering (Cons) Division v Life Insurance Corp of India, (1999) 1 CPR 84 (NC) : (1999) 1 CPC 589 : (1999) 1 CPJ 74; Life Insurance Corp of India v Laxmi Patnaik, (2002) 2 CPJ 63 (NC); Assistant Area Manager, SECL v Meera Garg, (2006) 2 CPJ 221 (NC).
2 General Manager Hotel Kanishka v Saroj Attal, (1997) 2 CPR 138 : (1997) 5 CTJ 518.
Page 2 of 2[85.111] When insurance company is liable for the default of its agent
3 New India Assurance Co Ltd v Integrated Organic Pvt Ltd, (2003) 2 CPJ 15 (NC); Life Insurance Corp of India v CERC, (1994) 1 CPR 106.
4 Life Insurance Corp of India v Consumer Education and Research Society, (1994) 1 CPR 106 : (1994) 1 CPC 274 : (1994) 1 CPJ 95 (NC).
End of Document
[85.112] When the experts reports may be takenHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (F) Surveyor and Experts Report
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(F) Surveyor and Experts Report
[85.112] When the experts reports may be taken
When technical issues are raised, and conflicting reports are given by experts, the proper course to find out the extent of deficiency in service is to get a technical evaluation from recognised technical organisation1 and it is not advisable to arrive at the quantum of damages by calculating the mean figure2.
1 New India Assurance Co Ltd v Jaiswal Plastic Tubes Ltd, (1997) 1 CPC 455 : (1997) 1 CPJ 1 : (1997) 5 CTJ 197 : (1997) 1 CPR 100 (NC); Rawat Brothers v Oriental Insurance Co Ltd, (2002) 1 CPR 97 (NC).
2 Oriental Insurance Co Ltd v Rawat Brothers, (2000) 10 SCC 615 : (2001) 2 CPC 335 (SC).
End of Document
[85.113] Surveyor’s role and reportHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (F) Surveyor and Experts Report
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(F) Surveyor and Experts Report
[85.113] Surveyor’s role and report
Surveyors are appointed by the insurance company and their reports are to be given due importance unless there are sufficient grounds not to agree with the assessments made by them1. Higher officers of the insurance company must verify whether surveyor’s reports are justifiable and may form the basis for paying for the loss suffered by the injured2. It is an unhealthy practice to appoint successive surveyors with a view to get a favourable report3. Copy of surveyor’s report has to be furnished to the complainant and objections invited and thereafter quantum fixed4. Where the surveyor’s report is based on surmises and is unsubstantiated, it may not be relied upon5. Surveyors are merely loss assessors and do not possess requisite knowledge or experience in dealing with and finding out the cause of the accident6.
Where the investigator appointed by the insurance company submits a report which is baseless and full of surmises and conjectures7 and the same is not proved by any affidavit8 it has to be rejected.Surveyors’ report is not that sacrosanct that it cannot be departed from; it is not conclusive9 however legitimate reasons have to be given for departing from the surveyors’ report10.
1 National Insurance Co Ltd v Sardar Gurmit Singh, (2004) 3 CPJ 46 (NC); National Insurance Co Ltd v Winner Chlorates Pvt Ltd, (2004) 2 CPJ 1 : (2003) 2 CPR 74 (NC); National Insurance Co Ltd v Vibgyor Structural Constructions Pvt Ltd,
Page 2 of 2[85.113] Surveyor’s role and report
(2003) CTJ 766 : (2003) 2 CPC 66 : (2003) 2 CPR 34 (NC); Oriental Insurance Co Ltd v Prem Prakash Mehra, (1998) 2 CPR 17 : (1998) 6 CTJ 648 (NC); National Insurance Co Ltd v Bholanath Sahoo, (2005) 4 CPJ 168 (NC).
2 Banares Beads Ltd v New India Assurance Co Ltd, OP No 243 of 1998 decided on 12 January 2005.
3 Sri Venkateswara Syndicate v Oriental Insurance Co Ltd, (2009) 8 SCC 507 [LNIND 2009 SC 1715], Sangam Distributors v National Insurance Co Ltd, (2002) 3 CPR 22 : (2002) 3 CPJ 78 : (2002) 2 CPC 592 (NC); Gammon India Ltd v New India Assurance Co Ltd, (2002) 3 CPR 141 : (2003) 1 CPC 116 : (2003) CTJ 128 (NC); Hundi Lal Jain Cold Storage and Ice Factory Pvt Ltd v Oriental Insurance Co Ltd, (2004) 3 CPR 3 (NC); Protection Manufacturers Pvt Ltd v New India Assurance Co Ltd, Supreme Court and National Commission on Consumer Protection Law, Vol 2, p 97 (NC).
4 New India Assurance Co Ltd v Northern Automobiles Ltd, (2002) 3 CPR 1 : (2002) 2 CPC 615 : (2002) 3 CPJ 121 (NC).
5 National Insurance Co Ltd v Venkateshappa, (2004) 2 CPJ 54 (NC).
6 United India Insurance Co Ltd v National Textiles Corp Ltd, FA No 263 of 1995 decided on 16 February 2004.
7 National Insurance Co Ltd v National Processors, (2003) 1 CPC 210 : (2002) 3 CPJ 346 (NC); Waseem Ahmed v Oriental Insurance Co Ltd, (2002) 3 CPJ 396 (NC) : (2003) 2 CPJ 174.
8 National Insurance Co Ltd v Munir Shah, (2003) 1 CPR 122 : (2002) 3 CPJ 336 (NC).
9 New India Assurance CoLtd v Pradeep Kumar, (2009) 7 SCC 787 [LNIND 2009 SC 798].
10 Sikka Papers Ltd v National Insurance Co Ltd, (2009) 7 SCC 777 [LNINDORD 2009 SC 674] : (2009) 3 CPR 272 (SC) : 2009 3 CPJ 90 [LNINDORD 2009 SC 674] (SC).
End of Document
[85.115] When the policy becomes inoperativeHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (i) Miscellaneous
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(i) Miscellaneous
[85.115] When the policy becomes inoperative
It is not for the consumer forum to examine the correctness of the formula adopted by the insurer in working out the surrender value of policies1. Service under the insurance policy may arise only after the occurrence of the contingency viz, the maturation of the policy or the death of the insured and on the request of the complainant claiming refund of all the premium paid plus bonus on cancellation of his policies, the insurer would be justified in offering only the surrender value of the policies2. Where the policy becomes inoperative on account of an act of state, the insured would be entitled only to the surrender value and there is no deficiency in service3.
Where in the case of lapsed policy, a reduced sum is arrived at as paid up value as per policy condition such a sum is not refund of premium paid on various dates and not assured sum, no interest is payable4.
1 Life Insurance Corp of India v Akhil Bharatiya Grahak Panchayat, (1992) 1 CPJ 27 (NC).
2 Life Insurance Corp of India v Anil P Tadkalkar, (1995) 3 CPR 658 : (1996) 1 CPC 93 : (1996) 1 CPJ 159 (NC).
3 Life Insurance Corp of India v Sampooran Singh, (1992) 1 CPR 436 : (1992) 1 CPJ 165 : (1992) CPC 383 (NC).
4 Life Insurance Corp of India v S Sindhu, AIR 2006 SC 2366 [LNIND 2006 SC 358]: (2006) 2 CPJ 18 (SC) : (2006) 7 SLT 157.
Page 2 of 2[85.115] When the policy becomes inoperative
End of Document
[85.114] Suppression of material facts at the time of proposalHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (i) Miscellaneous
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(i) Miscellaneous
[85.114] Suppression of material facts at the time of proposal
An insurance contract being one of utmost good faith1 suppression of information or giving false declaration at the time of proposal2 violates the terms of the contract unless the insured himself did not know about the nature of ailment3. The burden of proof of suppression is on the insurer4. The principle that suppression would vitiate policy applies even when the policy is revived5. However, policy is not to be called in question on ground of misstatement after two years had elapsed from the time the policy was taken6. Where the column relating to pre-existing disease is left blank in the proposal form there is no suppression7 It will not be construed as suppression if trivial or casual ailments are not disclosed8. It is the responsibility of the insurer to get the insured medically examined before issuing the policy9. Where the insurer does not prove that the insured had knowledge of his having hypertension, there is no suppression10.
For avoiding the contract of insurance, the insurance company must establish that (1) the statement in the proposal form must be on a material matter; (2) suppression must be fraudulently made by the policy holder; (3) policy holder must have known that it was false, mere inaccuracy and falsity in respect of some recital in the proposal is not sufficient; (4) the burden of proof is on the insurer to establish the circumstances and unless the insurer is able to do so there is no question of policy being avoided on the ground of misstatement of facts11. In determining the question whether a particular fact is one which ought to be disclosed the test to be applied is not what the assured thinks, nor even what the insurers think, but, whether a prudent and experienced insurer would be influenced in his judgment if he knew of it and there are dicta to suggest that the test is, what would a reasonable assured consider material12.
Page 2 of 2[85.114] Suppression of material facts at the time of proposal
1 Contship Container Lines Ltd v DKLall, (2010) 4 SCC 256 [LNIND 2010 SC 246] : AIR 2010 SC 1704 [LNIND 2010 SC 246]: (2010) 2 CPJ 12 (SC) : (2010) 2 CPR 305 (SC); Vikram Greentech (I) Pvt Ltd v New India Assurance Co Ltd, (2009) 5 SCC 599 [LNINDORD 2009 SC 432] : (2009) 2 CPJ 34 [LNINDORD 2009 SC 432] SC.
2 National Insurance Co Ltd v Satya Pal Tuli, (2003) 3 CPR 33 : (2003) 4 CPJ 98 : (2004) 1 PC 10 (NC); Life Insurance Corp of India v Mansa Devi, (2003) 2 CPJ 135 (NC); B Jayamma v Senior Branch Manager Life Insurance Corp of India, (2004) 3 CPJ 59 (NC); Senior Divisional Manager, Life Insurance Corp of India v Gangamma, (2002) 3 CPR 24 : (2002) 2 CPC 593 (NC); Life Insurance Corp of India v Chandravati Devi, (1993) 1 CPJ 255 (NC); Panni Devi v Life Insurance Corp of India, (2003) 3 CPJ 15 (NC).
3 Life Insurance Corp of India v PS Agarwal, (2005) 1 CPJ 41 (NC).
4 Life Insurance Corp of India v PS Agarwal, (2004) 3 CPR 152 (NC); Life Insurance Corp of India v GM Chennabasemma, AIR 1991 SC 392; Life Insurance Corp of India v Asha Goel, (2001) 2 SCC 160 [LNIND 2000 SC 1870] : (2001) 1 SLT 89; Life Insurance Corp of India v Badri Nageswaramma, (2005) 2 CPJ 9; Life Insurance Corp of India v Promila Malhotra, (2003) 1 CPR 38 : (2004) 1 CPJ 91 (NC).
5 National Insurance Co Ltd v Surinder Lal Arora, (1994) 2 CTJ 198 : (1994) 1 CPC 239 : (1993) 2 CPJ 408 : (1993) 3 CPR 482 (NC).
6 S Abita v Life Insurance Corp of India, (2002) 3 CPR 27 : (2002) 2 CPC 621 : (2002) 3 CPJ 62 (NC).
7 United India Insurance Co Ltd v Gurdeep Singh Oberoi, (1999) 2 CPR 9 : (1999) 2 CPJ 48A (NC); New India Assurance Co Ltd v Harbans Singh, (2002) 3 CPR 249 (NC).
8 Alia Begum v Life Insurance Corp of India, (1998) 1 CPC 3 : (1997) 5 CTJ 682 : (1997) 3 CPR 60 (NC); Life Insurance Corp of India v Sanjeev Mahendralal Shah, (1996) 1 CPR 129 (NC); Life Insurance Corp of India v Tejalben Kananbai Patel, Supreme Court and National Commission on Consumer Protection Law, Vol 3, p 153 (NC).
9 Life Insurance Corp of India v Jasbir Singh, (2003) 1 CPR 277 : (2003) 2 CPJ 114 (NC).
10 Deepak Jaiswal v Oriental Insurance Co Ltd, (2006) 1 CPJ 29 (NC).
11 Asha Garg v United India Insurance Co Ltd, (2005) 4 CPJ 269; Life Insurance Corp of India v Asha Goel, (2001) 2 SCC 160 [LNIND 2000 SC 1870] : (2001) 1 SLT 646.
12 Babatsikos v Car Onwers’ Mutual Insurance Co Ltd, [1970] 2 Lloyd’s Rep 314.
End of Document
[85.116] Third party liabilityHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (i) Miscellaneous
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(i) Miscellaneous
[85.116] Third party liability
Where, in a tripartite agreement policy involving the insurer, the employer and the employee, the employer had made a wrong representation and led the employee to believe that the policy would cover a particular and ultimately it turns to be wrong, the employer would be liable and the insurer would stand exonerated1. Where a stranger to the policy if affected by the incident or accident may maintain complaint for damage caused against the owner, dealer, manufacturer, and the like2 and in the case of accident, the goods carried inside the vehicle would not fall under the category of the third party property and the risk for the value of goods is not covered3. While the rider of the motor bike may be compensated, claim for damage to the vehicle may not be maintained as there is no privity of contract between the rider and the insurance company which had insured the vehicle cause for the collision4. Medical expenses already defrayed by the employer has to be deducted from the compensation5.
1 New India Assurance Co Ltd v Jamuna Devi, (2002) 3 CPR 65 : (2002) 2 CPC 666 : (2002) 3 CPJ 64 (NC).
2 New India Assurance Co Ltd v Nanik Wadhumal Alimchandari, (2003) 3 CPR 35 (NC) : (2003) CCC 271.
3 Oriental Insurance Co Ltd v Badri Prasad Khandelwal, (1998) 3 CPR 18 (NC); M Nageswara Rao v National Insurance Co Ltd, (2004) 1 CPR 81 : (2004) 2 CPJ 33A (NC).
4 OA Varada Desigan v Oriental Insurance Co Ltd, (2002) 1 CPC 193 : (2001) 3 CPR 171 (NC).
Page 2 of 2[85.116] Third party liability
5 Nizam’s Institute of Medical Sciences v Prasanth S Dhananka, (2009) 6 SCC 1 [LNIND 2009 SC 1292] : (2009) 2 CPJ 61 (SC) : (2009) 3 CPR 81 SC.
End of Document
[85.117] Ambiguity in the terms of the policyHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (i) Miscellaneous
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(i) Miscellaneous
[85.117] Ambiguity in the terms of the policy
Where the clause is taken to be vague, the insurance company may not escape liability since in such cases benefit must be given to the insured1, and it has to be interpreted contra proferentem2. Where the ambiguity in the policy is on account of a misprint, the principle is not applicable3. When there is no ambiguity in the policy, contra proferentem rule will not apply4.
In interpreting documents relating to a contract of insurance the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves5 and no artificial far fetched meaning might be given to the words appearing in the insurance policy6. Terms of the contract have to be construed strictly without altering nature of contract7.
Even if advertisements had been inadvertently issued offering a higher rate of interest, the bank may not escape liability and be absolved of its obligation to compensate the depositor and put the complainant in an awkward situation to suffer an undesirable loss8.
1 Murali Agro Products Ltd v Oriental Insurance Co Ltd, (2005) 1 CPJ 1 (NC).
Page 2 of 2[85.117] Ambiguity in the terms of the policy
2 United India Insurance Co Ltd v Pushpalaya Printers, (1997) 2 CTJ 731; confirmed in United India Insurance Co Ltd v Pushpalaya Printers, AIR 2004 SC 1700 [LNIND 2004 SC 257]: (2004) 3 SCC 694 [LNIND 2004 SC 257] : (2004) 1 CPJ 22; Peacock Plywood Pvt Ltd v Oriental Insurance Co Ltd, (2006) 12 SCC 673 [LNIND 2006 SC 1090] : (2006) 14 Scale 300 [LNIND 2006 SC 1090]; United India Insurance Co Ltd v Kiran Combers and Spinners, (2007) 1 SCC 368 [LNIND 2006 SC 1107].
3 United India Insurance Co Ltd v Orient Treasures Pvt Ltd, (2016) 3 SCC 49 [LNIND 2016 SC 17] : AIR 2016 SC 363 [LNIND 2016 SC 17]: I (2016) CPJ 6 (SC); New India Assurance Co Ltdv Zuari Industries Ltd, 2009 9 SCC 70 [LNIND 2009 SC 1756].
4 New India Assurance Co Ltd v Nonsuch Tea Estate Ltd, (1996) 2 CTJ 109.
5 General Assurance Society Ltd v Chandmull Jain, [1966] 3 SCR 500 [LNIND 1966 SC 42].
6 Oriental Insurance Co Ltd v Samayanallur Primary Agricultural Co-op Bank Ltd, (1999) 8 SCC 543 [LNIND 1999 SC 997].
7 Polymat India Pvt Ltd v National Insurance Co Ltd, (2005) 9 SCC 174 [LNIND 2004 SC 1755]; United India Insurance Co Ltd v Harchand Rai Chandan Lal, AIR 2004 SC 4795 : (2004) 8 SCC 644 [LNIND 2004 SC 970] : (2004) 7 Supreme 110 : (2004) 8 JT 8 : (2005) 1 CPR 64 (SC) : (2005) ACJ 570; Oriental Insurance Co Ltd v Sony Cheriyan, (1999) 6 SCC 451 [LNIND 1999 SC 715] : (1999) SLT 565.
8 Zilla Sahkari Bank Ltd v Uttar Pradesh Police Avas Nigam Ltd, (2005) 1 CPJ 89 (NC).
End of Document
[85.118] When the matter is decided by the civil courtHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (i) Miscellaneous
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(i) Miscellaneous
[85.118] When the matter is decided by the civil court
Undue influence, coercion, fraud, and the like, will involve voluminous evidence and adjudication of complex or disputed questions of fact and consumer courts exercising summary jurisdiction are not proper forum and those matters have to be agitated before civil courts1. Consumer forum have to decide whether they would adjudicate those matters or send them to civil court2. Where the opposite party unnecessarily complicates matters, consumer courts must not be misled by the same3. Where there are complicated questions of fact, only a civil court can decide4. Compensation can be awarded only for deficiency of service, for the recovery of total amount of loss only a civil suit would lie5.
1 T Anuradha Coaters Ltd v New India Assurance Co Ltd, (1992) 2 CPJ345 (NC); New India Assurance Co Ltd v John Fernandes, (1996) 2 CPJ 85 : (1996) 2 CPC 185 : (1996) 2 CPR 166 (NC); Ram Khanna v New India Assurance Co Ltd, (1997) 1 CLT 375 : (1997) 1 CPC 127 : (1996) 3 CPJ 89 : (1996) 3 CPR 164 (NC); Reliance Industries v United India Insurance Co Ltd, (1997) 5 CTJ 688 : (1997) 2 CPC 364 : (1997) 2 CPR 167 (NC); AV Cottex v The National Insurance Co Ltd, (2002) 1 CPR 82 (NC); Integra Securities Ltd v Oriental Insurance Co Ltd, (2002) 1 CPC 560 : (2002) 2 CPJ 62 : (2002) 1 CPR 138 (NC); Ferry Gold (India) Ltd v National Insurance Co Ltd, (2002) 2 CPR 115 : (2002) 2 CPC 442 : (2002) 2 CPJ 59 (NC); Mahakosh Holding Pvt Ltd v Oriental Insurance Co Ltd, (2003) 2 CPC 294 : (2003) 1 CPR 19 : (2002) 3 CPJ 272 (NC); Sai Agencies v Oriental Insurance Co Ltd, (2003) 1 CPC 230 : (2002) 3 CPJ 339 (NC); Vipras Corp Ltd v National Insurance Co Ltd, (2003) 1 CPC 327 : (2003) CTJ 452 : (2002) 3 CPJ 367 (NC);
Page 2 of 2[85.118] When the matter is decided by the civil court
Golden Gate Clothing Pvt Ltd v United India Insurance Co Ltd, (2002) 3 CPJ 356 (NC); Padam Cotton Yarns Ltd v National Insurance Co Ltd, (2005) 1 CPJ 86; RD Papers Ltd v New India Assurance Co Ltd, (2002) 2 CPC 684 : (2002) 3 CPR 88 (NC); Deccan Enterprises Pvt Ltd v National Insurance Co Ltd, (2002) 2 CPC 432 : (2002) 3 CPJ 68 : (2002) CTJ 690 : (2002) 2 CPR 97 (NC); Oriental Insurance Co Ltd v Munimahesh Patel, Supreme Court and National Commission on Consumer Protection Law, Vol 3, p 43 (SC).
2 Golden Gate Clothing Pvt Ltd v United India Insurance Co Ltd, (2002) 3 CPJ 356 (NC); JJ Merchant v Shrinath Chaturwedi, AIR 2002 SC 2931 [LNIND 2002 SC 488]: (2002) 6 SCC 635 [LNIND 2002 SC 488] : (2002) 3 CPJ 8 [LNIND 2002 SC 488] : (2002) CTJ 757.
3 Sushila Gautam v National Insurance Co Ltd, (1991) 2 CPR 622 (NC).
4 Nizam’s Institute of Medical Sciences v Prasanth SDhananka, (2009) 6 SCC 1 [LNIND 2009 SC 1292] : (2009) 2 CPJ 61 (SC) : (2009) 3 CPR 81 SC; New India Assurance Co Ltd v Hira Lal Ramesh Chand, (2008) 10 SCC 626 [LNIND 2008 SC 1301] : AIR 2008 SC 2620 [LNIND 2008 SC 1301]: (2008) 3 CPJ 6 (SC).
5 Citibank NA v GeekayAgropack Pvt Ltd, (2008) 15 SCC 102 [LNIND 2008 SC 959] : (2009) 1 CPJ 16 (SC).
End of Document
[85.119] When the assignee or subrogee may maintain complaintHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > C. Insurance Services > (i) Compensation in Insurance Matters > (i) Miscellaneous
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
C. Insurance Services
(i) Compensation in Insurance Matters
(i) Miscellaneous
[85.119] When the assignee or subrogee may maintain complaint
An assignee is not a consumer1 under the Consumer Protection Act, 1986 since he did not have any insurable interest in the subject matter at the time of loss and what has been assigned to him is a mere right to sue for the loss though he may have a right to recover the loss from the insurer by going before the civil court2, so is the case with insurance company assignee3. Subrogee may maintain complaint either in the name of the assured as his attorney holder or in the joint names of the assured and the insurer4.
1 As to the meaning of consumers see [85.053].
2 New India Assurance Co Ltd v GN Sainani, AIR 1997 SC 2938 : (1997) 6 SCC 383 : (1997) 2 CPR 205 (SC).
3 Economic Transport Organization, Delhi v Charan Spinning Mills Pvt Ltd and Economic Transport Organization v Oriental Insurance Co Ltd, 2010 (4) SCC 114 [LNIND 2010 SC 183]; (Constitution bench) Oberoi Forwarding Agency v New India Assurance Co Ltd, AIR 2000 SC 855 [LNIND 2000 SC 200](SC) : (2000) 2 SCC 407 : (2000) 2 CPR 20 : (2000) 1 CPJ 7 [LNIND 2000 SC 200]; ACE Door to Door Express Cargo v Pfizer Ltd, (2001) 3 CPJ 4 (SC); Green Transport Co v New India Assurance Co Ltd, (1999) 3 CPJ 621.
4 Economic Transport Organization, Delhi v Charan Spinning Mills Pvt Ltd and Economic Transport Organization v Oriental Insurance Co Ltd, 2010 (4) SCC 114 [LNIND 2010 SC 183]. (Constitution bench). Target Cargo Carriers v Aroma Organic Pvt Ltd, (2005) 2 CPJ 30 (NC); see also Green Transport Corp v New India Assurance Co Ltd, (1993)
Page 2 of 2[85.119] When the assignee or subrogee may maintain complaint
CPJ 621 : (1992) 2 CPJ 349 [LNIND 1992 NCDRC 105] (NC); Green Transport v Oriental Insurance Co Ltd, Supreme Court and National Commission on Consumer Protection Law, Vol 3, p 115 (NC); Gulab Roadlines v Oriental Insurance Co Ltd, Supreme Court and National Commission on Consumer Protection Law, Vol 3, p 167 (NC); Associated Bulk Movers v Reliance Industries Ltd, Supreme Court and National Commission on Consumer Protection Law, Vol 3, p 236 (NC).
End of Document
[85.122] Whether denying cash credit facility is deficiency in serviceHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > D. Banking and Financial Services
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
D. Banking and Financial Services
[85.122] Whether denying cash credit facility is deficiency in service
When the bank exercises its discretion, bonafide, in granting1, refusing2 or stopping3 cash credit facility and when the guarantor withdraws guarantee and security, the bank would be justified in calling upon the customer to liquidate the dues and may not be accused of deficiency in service4.
The bank is also entitled to adjust amount from fixed deposit receipt, though not matured, if the customer does not honour the terms of the agreement relating to cash credit facility and fails to repay5. However, malafide freezing of the account without giving notice amounts to deficiency in service6. Freezing of operation of account may not be done at the instance of any person other than the account holder unless there is an order of injunction by court and if that is done it will amount to deficiency in service7.
1 AR Narayanan v State Bank of Hyderabad, (1992) CPC 300 : (1992) 1 CPJ 129 : (1992) 1 CPR 534 (NC).
2 Branch Manager, Bank of Maharashtra v Manohar Sitaram Nandanwar, (1993) 1 CTJ 401 : (1993) 2 CPJ 158 : (1993) 2 CPR 109 : (1993) 1 CLT 424.
3 Vikram & Vikram Enterprises v Branch Manager, State Bank of India, (1996) 2 CPJ 183 : (1998) 6 CTJ 589 : (1996) 2 CPR 192 (NC).
4 See note 3 above.
5 Branch Manager, Bank of Maharashtra v Manohar Sitaram Nandawar, (1993) 2 CPJ 158 (NC) : (1993) 2 CPR 109 (NC) : (1993) 1 CTJ 401 (NC).
6 Mike’s Pvt Ltd v State Bank of Bikaner, (1995) 3 CPR 1 (NC).
7 Bank of Baroda v Parasram Mangaram, (1999) 1 CPJ 79 (NC).
Page 2 of 2[85.122] Whether denying cash credit facility is deficiency in service
End of Document
[85.123] Whether failure to pay fixed deposit amounts to deficiency in service
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > D. Banking and Financial Services
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
D. Banking and Financial Services
[85.123] Whether failure to pay fixed deposit amounts to deficiency in service
Failure to pay the amounts due under fixed deposits on maturity is clear deficiency in service1 as also failure to pay on premature withdrawal2. Where the deposit is in the nature of security for loan, there is no scope for raising a consumer dispute3.
1 Prabhulingayya Hanagodimath v KVN Rajasekhar, (2003) 3 CPJ 4 : (2003) 3 CPJ 4; Puheet Kaur v Hindustan Financial Management Ltd, (2003) 3 CPJ 95 : (2003) 2 CPC 362 : (2003) 1 CPR 74 (NC); Sanjay Kumar Ahuja v Shanta Rani, (2003) CTJ 366 : (2003) 2 CPR 8 : (2003) 2 CPJ 113 (NC); Meesa Vara Lakshmi v M Anuradha, (2003) 2 CPJ 79 (NC); K Kasi Annapurna v Vemuri Bharati, (1996) 4 CTJ 306 : (1995) 3 CPR 533 (NC); Neela Vasant Raje v Amogh Industries, (1993) 3 CPR 343 : (1993) 1 CTJ 890 : (1993) 3 CPC 261 : (1994) 1 CPC 149 (NC); Golden Forests India Ltd v Balwant Singh Bedi, (2002) 2 CPC 134 : (2002) 2 CTJ 566 : (2002) 2 CPJ 36 (NC).
2 Peerless General Finance & Investment Co Ltd v P Narayana, (2002) 1 CPR 49 (NC).
3 As to fixed deposits see generally [25] BANKING AND FINANCE; Twentieth Century Finance Corp Ltd v Civil & Consumer Welfare & General Service Society, (1994) 2 CPR 53 : (1994) 2 CTJ 8 (NC).
End of Document
[85.124] NegligenceHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > D. Banking and Financial Services
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
D. Banking and Financial Services
[85.124] Negligence
No strait jacket formula may be laid down to cover each case of negligence of a banker and the question of negligence requires to be decided on the facts and circumstances of each case1.
1 Bank of Maharashtra v Automotive Engineering Co, (1993) 2 SCC 97 : (1992) 3 CCC 839.
End of Document
[85.125] When non-banking financial companies may issue noticeHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > D. Banking and Financial Services
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
D. Banking and Financial Services
[85.125] When non-banking financial companies may issue notice
A depositor has to elect either to go before the company law board1 under the Reserve Bank of India Act, 19342 or under the Consumer Protection Act, 19863 before the consumer forum4. Before taking over unit for default in the repayment of the loan, the non-banking financial company is bound to issue notice to the defaulter5 and further must not fail to dispose of the unit in spite of getting offers6.
Complainant, if he is not a party before the company law board, is not bound by proceedings of the company law board7.
1 As to company law board see generally [40] COMPANIES AND CORPORATIONS.
2 Ie under the Reserve Bank of India Act, 1934 section 45QA.
3 Ie under the Consumer Protection Act, 1986 section 12.
4 Lloyd Finance Ltd v Senior Wire Products, RP No 1352 of 2002 decided on 30 January 2002; see also Allianz Capital and Management Services Ltd v BP Grover, (2001) 1 CPJ 41 (NC); Allianz Capital and Management Services Ltd v Nirupama, (2002) 2 CPJ 24; Probir R Ghosh v Yule Financing and Leasing Co Ltd, (2004) 1 CPR 52 (NC).
5 Karnataka State Financial Corp v Ganesh Flour Mills, (2002) 2 CPC 588 : (2002) 3 CPJ 265 : (2002) 3 CPR 16 (NC).
6 See note 2 above.
7 Prakash Wadhwa v Classic Global Securities Ltd, (2003) 4 CPJ 37 : (2003) 3 CPR 82 (NC).
End of Document
[85.126] Liabilities of financial institutions in case of unitsHalsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn
Halsbury's Laws of India (Tort & Consumer Protection, Vol 35), 2nd Edn > Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed > [85] CONSUMER PROTECTION > 6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986 > (4) DEFICIENCY IN SERVICE IN VARIOUS > D. Banking and Financial Services
85 - Halsbury's Laws of India (Tort & Consumer Protection, Vol 35) 2nd ed
[85] CONSUMER PROTECTION
6. SUBSTANTIVE PROVISIONS OF THE CONSUMER PROTECTION ACT 1986
(4) DEFICIENCY IN SERVICE IN VARIOUS
D. Banking and Financial Services
[85.126] Liabilities of financial institutions in case of units
It is the duty of the financial institution concerned to pay the promised returns on maturity without resorting to technicalities such as that the complainant asked for repurchase of the units and not redemption1. Unless there is a contract between the purchaser of the units and the financial institution concerned that despatch of warrants for matured value of the units by a particular mode would absolve them of any liability, and the financial institution would be liable2.
Failure to deliver units for several years, after encashment of cheque, in spite of repeated requests to the authorised agents of Unit Trust of India is clear deficiency in service3. In case cheques given by investor to the agent of Unit Trust of India are wrongfully encashed by the agent, it would be beyond the scope of the limited authority conferred by Unit Trust of India and there is no deficiency in service4. Where the Unit Trust of India sends back the cheque given by the investor, after a long delay on the ground of insufficiency, there is deficiency in service5. Misprint in brochure or mistake in the contents of the brochure may not be taken advantage of by investors since the scheme itself has been framed by the Unit Trust of India under powers conferred by statute and there may be no estoppel against statute and there is no deficiency in service6. While it would be deficiency in service for delay in delivering the units, there is no question of the complainant being entitled to any compensation for presumptive loss on account of the fall in the price of units7. Long delay in effecting transfer of units in the name of the nominee is deficiency in service8. Where the cheques sent representing the maturity value of the units are lost in transit or fraudulently encashed by someone else in collusion with the bank, Unit Trust of India would be liable for deficiency in service9. Delay in payment of maturity value is deficiency in service10 while deduction of tax at source is not11.
1 Indfund Management Ltd v Shakuntala Brij Mohan, (2003) 2 CPR 107 (NC).
Page 2 of 2[85.126] Liabilities of financial institutions in case of units
2 Jeevan Bheema Sahayog Asset Management Co Ltd v Rekha Tripathi, (2003) 1 CPJ 192 (NC); Unit Trust of India v Ravinder Kumar Shukla, AIR 2005 SC 3528 [LNIND 2005 SC 707]: (2005) 7 SCC 428 [LNIND 2005 SC 707] : (2005) 127 Comp Cas 559.
3 Unit Trust of India v Bandara Roy Chowdhry, (1996) 4 CTJ 964 : (1996) 3 CPR 227 (NC); as to deficiency in service see [85.063] and the following.
4 Unit Trust of India v Sudhir Ganpatrao Chauhan, (1995) 2 CPR 466 (NC).
5 Harish Chandra Pande v DK Goswami Zonal Manager, Unit Trust of India, (2002) 1 CPR 102 (NC).
6 Unit Trust of India v Kumari Gauthami, (1996) 1 CPR 22 (NC); Unit Trust of India v Ram Kishan Chawla, (1998) 6 CTJ 660 : (1997) 2 CPR 135 (NC).
7 Unit Trust of India v Dayal Mohan Gupta, (1997) 1 CPR 70 : (1997) 5 CTJ 304 (NC).
8 MM Dastur & Co represented by Unit Trust of India v Nomula Anil Kumar, (2002) 2 CPR 83 (NC).
9 Unit Trust of India v Kalki Devi, (2004) 2 CPR 21 (NC); Raghubir Singh v Unit Trust of India, (2002) 3 CPJ 342 (NC).
10 KM Singh v Unit Trust of India, (1996) 1 CPR 48 : (1996) 4 CTJ 295 (NC).
11 Krishna Dev Sehgal v Unit Trust of India, (2001) 3 CPJ 20 (NC).
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