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Old 2nd December 2022, 19:15   #1
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A consumers' guide to their rights, duties and remedies

This is a basic guide to the rights, obligations and remedies available to the consumer in India. This is by no means a comprehensive or exhaustive guide but I shall endeavour to cover all the basics that are relevant to the Indian consumer, including best practices. The principles and laws in this guide apply to a large variety of good and services but I will primarily be dealing with the sales and services of vehicles. Laws are changing, legal positions are changing and most importantly I have only explored but a small droplet of a vast expanse that is law.

I decided to write this guide on consumer protection laws in India after seeing a lot of posts on the forum seeking legal remedies, which led me into researching about consumer protection laws and that piqued my interest.

This guide will include certain aspects from contract law and other relevant commercial laws since remedies and legal principles in case of consumer protection laws do not exist in the consumer protection act alone, and while the principles may be common to other goods and services as well, I shall be dealing with vehicles sales and service.

I will do my very best to be accurate with the information in this, but if mistake do creep in, please forgive me and let me know. I will rectify them.

First off, we need to keep a few things in mind when we enter into any transaction, the first being due diligence.

This is governed by two legal principles namely caveat emptor and caveat venditor. These two define the duties of the buyer and the seller in a transaction.

Caveat Emptor

This translates to 'buyer beware'. It is the buyers to duty to use all reasonable means to ascertain all relevant information about the property or goods that they buy. This is also known as due diligence.

Caveat Venditor

This translates to 'seller beware'. The seller is required to disclose all relevant information related to the property or goods that is/are being sold. Any concealment of relevant information is illegal.


It is therefore important to read all terms and conditions of the sale thoroughly before signing anything. Ascertain all relevant facts about quality, physical attributes etc to your satisfaction before entering into a transaction. There might be something hidden in the fine print. The contracts for the sale of vehicles are adhesion contracts and are therefore non-negotiable. Nevertheless it is important to apprise yourself of the terms and conditions and consciously consent to the contract. Needless to say, do not sign anything without reading it carefully and most definitely do not sign on anything blank.

This (Dealer registers Grand Vitara of the wrong colour in my name | Now what?) is a fit case showing what can go wrong if you are not careful in ascertaining relevant facts by carrying out a PDI.

Next up, in case there are any negotiations or agreements which are not part of the signed contract, ensure that it is in writing and not oral, preferably in the form of emails. Do not, I repeat do not go by blind trust alone. Oral contracts are legally valid but proving them is extremely difficult and more often than not it is as good as a contract written in water. What happened to the McDonald brothers is a good example.



Remedies

There are 4 major legislations that are relevant to consumer disputes, in the case of movable goods i.e., the Indian Contract Act, 1872, the Specific Performance Act, 1963, the Sale of Goods Act, 1930 and the Consumer Protection Act. However, the Consumer Protection Act, 2019 (here after "the Act" or "CPA 2019") which replaced the Consumer Protection Act, 1986 aims to be an all encompassing Act that deals with all sorts of consumer disputes laying out the rights and remedies that a consumer enjoys. and that is what I shall be dealing with in this guide.

Section 2(9) of the act enumerates the rights a consumer enjoys as follows:
2(9) "consumer rights" includes,--

(i) the right to be protected against the marketing of goods, products or services which are hazardous to life and property;

(ii) the right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices;

(iii) the right to be assured, wherever possible, access to a variety of goods, products or services at competitive prices;

(iv) the right to be heard and to be assured that consumer's interests will receive due consideration at appropriate for a;

(v) the right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumers; and

(vi) the right to consumer awareness;

Section 2(6) of the Act lays down the causes against which a complaint may be filed as follows:
(6) "complaint" means any allegation in writing, made by a complainant for obtaining any relief provided by or under this Act, tható

(i) an unfair contract or unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;

(ii) the goods bought by him or agreed to be bought by him suffer from one or more defects;

(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from any deficiency;

(iv) a trader or a service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the priceó
(a) fixed by or under any law for the time being in force; or
(b) displayed on the goods or any package containing such goods; or
(c) displayed on the price list exhibited by him by or under any law for the time being in force; or

(d) agreed between the parties;
(v) the goods, which are hazardous to life and safety when used, are being offered for sale to
the public--
(a) in contravention of standards relating to safety of such goods as required to be
complied with, by or under any law for the time being in force;
(b) where the trader knows that the goods so offered are unsafe to the public;
(vi) the services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by a person who provides any service and who knows it to be injurious to life and safety;

(vii) a claim for product liability action lies against the product manufacturer, product seller or product service provider, as the case may be;
Essentially, a consumer has a right to know about what sort of goods or services they are being supplied with, to be supplied with goods or services as promised and in the absence of the above, they have a right to redressal. Further a consumer may file a complaint against unfair trade practices, defective goods or deficient services, excessive pricing and substandard goods which may be a threat to the consumer or the public at large. False advertising is also covered under the Act, more specifically under the Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022. Recently a Consumer Commission in Kerala awarded compensation to the owner of a vehicle for advertising exaggerated fuel efficiency.

If the issue you're facing falls within the above description then you have a cause of action to approach the concerned forum however it is recommended that you issue a legal notice before you approach the forum.

Legal Notice

These are notices that are issued by legal practitioners that implore the recipient to act or cease action as the case may be, failing which the consumer will approach the appropriate forum.

In the legal notice in chronological order list out the relevant facts and events that led you to issue such a legal notice along with details about the issues that you are facing or have faced, when you first noticed the said issues, when and how you intimated the persons concerned, what their response was, if anything was done to remedy the situation and if yes, what it was and why such resolution has not been satisfactory.

Thereafter, enlist your claims for compensation, including compensation for mental agony etc.

Do not cite judicial pronouncements or statues in the legal notice.

The legal notice will most likely be met with a reply. Although it is a rarity, the recipient remedies the situation, but more often that not, a reply will issued denying all allegations and sometimes counter allegations are made.

In case there are counter allegations, it is important to refute them. This may go back and forth as many times as you please but usually after refuting the counter allegations is when you approach the forum.

The Consumer Disputes Redressal Commission

There are the District, State and National Consumer Redressal Commission which you may approach depending on pecuniary jurisdiction. While you may appear in person or appoint an agent to appear on your behlaf, it is highly recommended you seek the help of a lawyer or a registered voluntary consumer association.

Voluntary Consumer Association

A voluntary consumer association is a "body formed by a group of persons coming together, of their own will and without any pressure or influence from anyone and without being mandated by any other provisions of law." [Sobha Hibiscus Condominium v. Sobha Developers Ltd., (2020) 11 SCC 328]

They are a body that work for the rights of consumers and are recognised complainants as per Section 2(5)(ii) of the CPA 2019. The posses the expertise and resources to deal with consumer protection matter and more often than not work out far cheaper than hiring a lawyer.

Approaching the Forum

There are certain factors that come into play when one chooses to approach the consumer dispute redressal forum, such as limitation and jurisdiction.

Limitation

Every civil statute is governed by Limitation, i.e, the time period within which one must file a suit which is calculated from the moment the cause of action which entitles a consumer to file a complaint, arises for example a manufacturing defect may exist in your car, but the clock starts ticking the moment you have discovered such defect. The time period varies from statute to statute but in the case of the CPA 2019, it is 2 years from the time the cause of action arises as provided by Section 69.

It is pertinent to note that owing to the pandemic, the Supreme Court has held that the time period between 15.03.2021 and 28.02.2022 does not count towards limitation. In other words if the 2 year limitation period overlaps the above said period, then the period of limitation remaining on the 15.03.2021 would be be then counted from 01.03.2022. If your cause of action began in this period, then you are to count the period of limitation from 01.03.2022.

In re Limitiation.pdf


However, the Commissions have the power to condone delays in certain cases if the consumer satisfies them that the delay was not without reason and that there was sufficient cause. Please keep in mind that this does not mean you can take things lightly.

Jurisdiction

Now that we have determined if you are within the time limit to file There are two kinds of jurisdiction, i.e., territorial and pecuniary. Both are defined in the statute and they decide which forum has to be approached and where.

Pecuniary Jurisdiction

Depending on the value of the goods or services rendered, the forum we must approach for a remedy changes.

The CPA 2019 read with the Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021, lays down the pecuniary jurisdiction of District, State and National Commissions.

The District Commissions can entertain complaints where the value of the goods and services rendered does not exceed ₹50 lakh.

The State Commissions can entertain complaints where the value of the goods and services rendered exceeds ₹50 lakh but does not exceed ₹2 crores.

The National Commission can entertain complaints where the value of the goods and services rendered exceeds ₹2 crore.

Territorial Jurisdiction

Territorial Jurisdiction determines, in cases where State and District Commissions have to be approached, which one you are to approach.

Section 34(2) lays down the territorial jurisdiction of the District Commission and Section 47(4) lays down the territorial jurisdiction of the State Commission.

You may institute a complaint where one or more opposite parties resides, works, carries out business or has a branch, where the cause of action arises or where you reside. In case there are multiple opposite parties located in different jurisdictions, you may approach any one of the fora that have jurisdiction and seek their permission to institute a complaint.

I highly recommend that since you have the option that you institute a complaint where you reside or work since it will work out easier logistically and you can keep an eye on the proceedings in case you have chosen to hire a lawyer.

Drafting a complaint

Drafting is a very important part of the process because you need to paint a clear picture to the respective Commission as to how you have been wronged and why you're entitled to relief and what the relief is that you are entitled to. It is imperative that you spell out all that is relevant without convolving the complaint with too much unnecessary detail. It is useful to keep the 5 Cs of drafting in mind which stands for Concise, Clear, Convincing, Complete and Coherent.

Rule 7(4) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 states that - "Every complaint shall clearly contain particulars of dispute and the relief claimed and shall also be accompanied by copies of such documents as are necessary to prove the claim made in the complaint."

In the complaint you will have to -
  1. Introduce and describe the parties;
  2. Give context by describing the relevant transaction;
  3. Elaborate the defects in the goods or deficiency in the service;
  4. If you have intimated the opposite party by legal notice or other means, detail the same;
  5. The relevant statutes and provisions that are applicable;
  6. A short note on the documents and other evidence that you will be producing;
  7. Jurisdiction - State that the Commission you have approached has jurisdiction and why;
  8. Limitation - State that you are within limitation and if not provide reasons as to why the delay must be condoned;
  9. Prayer with reliefs sought;
  10. An affidavit swearing the complaint is true.
You can refer to the following template for structure. Please do check the website of the State Commission of the State in which your are filing the complaint to see if they have any specific requirements.

Proforma of Complaint.pdf

Make sure you include claims for punitive damages as the courts cannot grant in excess of what is paid. Often these amounts are exaggerated in the complaint but it is up to you if you wish to exaggerate the amounts or not.

Filing the complaint

Now that filing has largely moved online you can create an account file your complaint on e-Daakhil.

Once you login, choose Filing.

A consumers' guide to their rights, duties and remedies-screenshot-20230120-172825.png

Next click Accept.

A consumers' guide to their rights, duties and remedies-screenshot-20230120-172926.png

Under New Consumer Case, choose Consumer Case (CC)

A consumers' guide to their rights, duties and remedies-screenshot-20230120-173006.png

Enter the claim amount and the place where you are filing based on what I have written under the heading 'Territorial Jurisdiction'. You can also see the fee applicable on that screen.

A consumers' guide to their rights, duties and remedies-edit.png

On the next screen you will have to enter the details of the parties and give a case summary.

You have the option to add additional complainants or opposite parties.

Thereafter, you have the document upload screen.

You will have to upload -
  1. An Index of all the documents that you are filing.
  2. A list of dates and events. - In a table put in important dates in one column and in the corresponding cell in the same row write a short summary of what happened on that day.
  3. Memo of parties - this is a list of the parties, including yourself. You will have to include full addresses here. The notices etc., will be issued to this address so make sure you enter the right ones.
  4. The complaint that you had drafted with the affidavit.
You can also upload any other document that is relevant such as supporting documents and vouchers, petition for condonation of delay etc.,


On the next screen you can preview the application and also choose the location of the commission where you intend to institute proceedings. (Take a look at the Territorial Jurisdiction heading).

Thereafter you finalise the application and submit it. You will also have to pay the requisite fee.

In case you do not have the option of online filing, you will have to file the documents in sets of 3 plus 1 for each opposite party(3+number of opposite parties) at the commission where you are instituting the complaint.

The fee that is applicable is contained in Rule 7 of the Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020 and is shown below.

A consumers' guide to their rights, duties and remedies-fee.png

You will have to pay the fee in the form of a demand draft or postal order. The fee that you pay goes into the Consumer Welfare Fund of the State Government or the Central Government as the case may be.

Post institution of complaint

Once the complaint is filed, your case will get numbered and a date assigned. Thereafter notice is issued to the opposite parties and it will move to the trial stage. In some cases, the matter will be referred for mediation.

FAQs

1. Can more than one consumer institute a complaint under Consumer Protection Act 2019?

The answer is yes. The Supreme Court has held that although 2(5)(v) envisages only "numerous" consumers, a few consumers can also come together to file a complaint. Only the interest needs to be the same and not the cause of action.

2. If there is a revision in tax during an extended waiting period is there any remedy against the dealer?

No there is not. The delivery timeline is tentative and it is very unlikely that the dealer promises that it will be delivered by a certain date. (Ravinder Raj v. Competent Motors Co. (P) Ltd., (2011) 11 SCC 547)

3. There is a discrepancy between the amount paid and the amount mentioned in the RC and the difference is being charged as handling charges. Am I liable to pay?

No you are not. Time and again the Courts have reiterated that handling charges are illegal and the consumer is not liable for the same.

4. The dealer has drafted an affidavit on my behalf and forged my signature. What is my recourse?

You may initiate criminal action on the dealer but you also have a remedy under the consumer protection act since this amounts to an unfair trade practice.

5. The dealer has delivered a defective/used car despite paying full consideration. What do I do?

This has been held to be an unfair trade practice and you can seek compensation under the Consumer Protection Act. (Rajiv Shukla v. Gold Rush Sales & Services Ltd. (2022) 9 SCC 31)

6. What is my remedy when the dealer is deliberately withholding delivery despite payment of full consideration to take advantage of a price hike?

This is an unfair trade practice and is actionable under the Act. (Mohinder Pratap Dass v. Modern Automobiles, (1995) 3 SCC 581)

--

I hope that the information shared here is useful. If you have any queries do post them in this thread. I will answer you questions for sure as they give me an opportunity to learn as well. If there is anything new that is of consequence to this guide, I shall update the same in this thread.

Thanks! Happy Republic Day all!

Last edited by adwaith : 26th January 2023 at 00:54.
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Old 26th January 2023, 04:50   #2
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Re: A consumers' guide to their rights, duties and remedies

Thread moved out from the Assembly Line. Thanks for sharing!
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Old 26th January 2023, 12:40   #3
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Re: A consumers' guide to their rights, duties and remedies

Thank you for putting this together, Adwaith.
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Old 26th January 2023, 16:11   #4
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Re: A consumers' guide to their rights, duties and remedies

Quote:
Originally Posted by Roy.S View Post
Thank you for putting this together, Adwaith.
My pleasure! Hope you find this useful!
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Old 26th January 2023, 20:27   #5
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Re: A consumers' guide to their rights, duties and remedies

A post with such detailed information!! Kudos Adwaith
Though our judicial system takes their own sweet time to deliver a verdict and delaying tactics played by the OEM. eg. what VW did to a customer from Kerala (Cochin).
The post gives hope that we as consumers has some legal grounds to approach a court if a defective " lemon " car is delivered to us or when an ASS tries to pull a fast one.
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Old 26th January 2023, 22:51   #6
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Re: A consumers' guide to their rights, duties and remedies

Thanks for detailed step by step guide. I have used the online consumer forum grievance several times. Success rate is limited. It can be used as a tool to make other party correct their wrong doing. But for downright cheating and high payout cases eDaakhil seems to be the best way.

Thank you again.
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Old 18th March 2023, 10:56   #7
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Re: A consumers' guide to their rights, duties and remedies

Recently I heard a video on Youtube about new legislation where a consumer has a Right to Repair products and this would not void the warranty.

https://righttorepairindia.gov.in/index.php

The link to the video is:



Does this mean we can modify our vehicles without worrying about the warranty being voided?
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Old 18th March 2023, 11:08   #8
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Re: A consumers' guide to their rights, duties and remedies

I seemed to have overlooked something which seems rather seminal to the speedy disposal of Consumer Cases, and my sincere apologies for the same.

Section 38(7) of the Consumer Protection Act, 2019 reads as follows -
38. Procedure on admission of complaint.—(7) Every complaint shall be disposed of as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the date of receipt of notice by opposite party where the complaint does not require analysis or testing of commodities and within five months if it requires analysis or testing of commodities:

Provided that no adjournment shall ordinarily be granted by the District Commission unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by the Commission:

Provided further that the District Commission shall make such orders as to the costs occasioned by the adjournment as may be specified by regulations:

Provided also that in the event of a complaint being disposed of after the period so specified, the District Commission shall record in writing, the reasons for the same at the time of disposing of the said complaint.
This Section, prescribes the time limits for the disposal of cases and while its is directory and not mandatory in nature, is does require the recording of reasons in cases of grant of adjournments and in cases where the the complaint is disposed off after the prescribed limit. While there is no hard and fast rule on the time limit for disposal it does impose an obligation dispose of complaints as expeditiously as possible.

Further, the statement and objects of the Act also talks about the timely and effective settlement of consumer disputes.

Quote:
Originally Posted by Murli View Post
Does this mean we can modify our vehicles without worrying about the warranty being voided?
As I understand it, the legislation requires OEMs to share their product details with consumers so that they can repair it themselves or by third parties. It has nothing to do with the laws about modification of vehicles.

Last edited by adwaith : 18th March 2023 at 11:33. Reason: Replied to a new post
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