The transformative change in the Indian economy has significantly altered the way many Indians buy, shop, travel and explore. The combined effect of the internet, market competition and rapid innovations have drastically expanded the range of options and information available to consumers. As a result, long-standing consumer traditions have been disrupted creating a need for a novel consumer grievance redressal scheme meant for the new market. Taking this new and dynamic marketplace into consideration, the Indian Parliament on 6th August 2019 passed the Consumer Protection Bill, 2019. On 9th August 2019, the Consumer Protection Act, 2019 ("CPA 2019") received assent from the President of India and was notified in the Official Gazette by the Government of India. Thereafter, vide Notification dated 15.07.2020, the Ministry of Consumer Affairs, Food and Public Distribution notified major provisions of CPA 2019, and declared 20th July 2020 to be the appointed date for the coming into force of CPA 2019.
The overhauling of the consumer laws through the enactment of the CPA, 2019 is being perceived as a major affirmative step towards ensuring timely and effective administration and settlement of consumer disputes, keeping in mind the prevalent economic practices affecting consumers of the day. The CPA, 2019 has broadened the concept of 'consumer' by incorporating under its definition, offline and online transactions through electronic means or by teleshopping or direct selling or multi-level marketing. Under the new regime, several other significant additions have also been made such as the establishment of Consumer Protection Council, enhancement of pecuniary jurisdiction of consumer courts, introduction of 'Product Liability', provisions for alternative dispute resolution and mechanism for filing e-complaints.
NOTABLE FEATURES OF CPA, 2019
- Broadening the concept of 'consumer'
Explanation to Section 2(7) of CPA 2019 has broadened the meaning of "consumer" to include the person(s) who buys any goods and hires or avails any services through e-commerce or by teleshopping or direct selling or multi-level marketing. The said explanation reads as follows:
"Explanation. -For the purposes of this clause,
... (b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing".
Prior to this amendment, the meaning of the word "consumer" was used in a restricted sense and included person(s) who bought goods or availed services, and the definition in the Consumer Protection Act,1986 ("1986 Act") did not mention e-commerce transactions specifically. Newly introduced definition under CPA 2019, specifically covers e-commerce transactions viz. online transactions through electronic means. Term 'e-commerce' has been defined under Section 2(16) of the CPA, 2019 as "buying or selling of goods or services including digital products over a digital or electronic network".
Pertinently, the Government of India recently notified Consumer Protection (E-Commerce) Rules, 2020 ("E-Commerce Rules, 2020"). E-Commerce Rules, 2020 are applicable to inventory e-commerce entities1; market-place e-commerce entities2; e-retailers registered in India or abroad but offering goods and services in India; and to all forms of unfair trade practices. The primary objective for enforcing the E-Commerce Rules, 2020 was to cast legal obligations upon e-commerce entities, and thereby ensure that the interests and rights of the consumers are safeguarded.
- Enhancement of Pecuniary Jurisdiction
CPA 2019 has brought substantial changes in the jurisdiction of all the consumer redressal forums. The pecuniary jurisdiction of the District Commission (earlier known as "District Forum") has been revised from 20 lakhs to 1 crore.3 Accordingly, the District Commission(s) will exercise their jurisdiction over the complaints filed, where the value of goods and services does not exceed 1 Crore. State Commission(s) will entertain the complaints where the value is more than 1 crore but does not exceed 10 crores4. Correspondingly, the National Consumer Disputes Redressal Commission ("National Commission") will be able to exercise its jurisdiction over the complaints filed, where the value is more than 10 crores5.
A remarkable feature of CPA 2019 includes the change in the basis on which the value of goods and services, is determined. While under the 1986 Act, the pecuniary jurisdiction for filing the complaint was decided on the basis of the value of goods and services as claimed by a consumer i.e. 'value + compensation', whereas under CPA 2019, it is on the basis of the value of goods and services paid as consideration. Recently, the National Commission, in M/s Pyaridevi Chabiraj Steels Pvt. Ltd v/s National Insurance Company Ltd. & Ors6, clarified upon the same by observing that the Parliament, while enacting CPA 2019, ensured that a Consumer must approach the appropriate Commission, basis the value of consideration actually paid, and it is for this reason that specific provisions have been carved out under Sections 34 (1), 47 (1) (a) (i) and 58 (1) (a) (i), providing for the pecuniary jurisdiction of the District Consumer Disputes Redressal Commission, State Consumer Disputes Redressal Commission and the National Commission respectively.
- Territorial Jurisdiction
CPA 2019 provides for filing of complaints at the place where the Complainant resides or personally works for gain. The aforesaid provision stands in contradistinction with the erstwhile 1986 Act, which provided for filing of complaint where the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain.7 Understandably, the same shall help the consumers in instituting legal action in their own jurisdiction, as they will no longer be required to undertake inter-state or inter-city travels for seeking their legal remedies.
- Product Liability
Product liability includes claims against companies that allegedly made or sold a defective product.8 Earlier, in the 1986 Act, there were no detailed provisions concerning product liability although consumers could initiate actions for defective products.
CPA 2019 provides for a comprehensive scheme for product liability actions. The expression "product liability" is defined under Section 2 (34) as "the responsibility of a product manufacturer or product seller, of any product or service, to compensate for any harm caused to a consumer by such defective product manufactured or sold or by a deficiency in services relating thereto." The net effect of this inclusion will be that any aggrieved consumer can file a complaint against the 'product manufacturer', 'product service provider' or 'product seller'. CPA 2019 gives more teeth to consumers for initiating a product liability action by means of filing a complaint before the concerned authority. CPA 2019 has laid down a detailed scheme for product liability actions under Sections 83 - 87.
Under Section 83 of CPA 2019, a complainant can bring in a product liability action for any harm caused to him on account of the defective product. Such an action can be brought against a product manufacturer, or a product service provider or a product seller.
Section 84 of the Act lays down the conditions for making a 'product manufacturer' liable for product liability action. A product liability action can be initiated against the product manufacturer in case of a manufacturing defect; deviation from manufacturing specifications; or not confirming to the express warranty or for inadequate or improper instructions for usage. Pertinently, subsection 2 of Section 84 makes provision for 'strict product liability' inter alia entailing that in a product liability action, a product manufacturer shall be liable even if he proves that he was not negligent or fraudulent in making the express warranty for a product.
Similarly, Section 85 lists the conditions where a product service provider is to be held liable for product liability action. The conditions inter alia include service being faulty or imperfect or deficient or inadequate in quality; an act of omission or commission or negligence or conscious withholding of any information which caused harm; non-issuance of adequate instructions or warnings to prevent any harm; or service not confirming to express warranty or the terms and conditions of the contract.
Likewise, under Section 86 of CPA 2019, the conditions for liability of a product seller (who is not a product manufacturer) are provided. A product seller is liable when he inter alia fails to- confirm to the express warranty made by the product seller which caused the harm; or fails to exercise reasonable care in assembling, inspecting or maintaining such product; or he did not pass on the warnings or instructions of the product manufacturer regarding the dangers involved or proper usage of the product while selling such product and such failure was the proximate cause of the harm; or when he has altered or modified the product and such alteration or modification was the substantial factor in causing the harm.
However, it is noteworthy that proof of causation is equally necessary for products liability actions. A plaintiff must establish that a product of a defendant manufacturer caused her injuries.9 In this regard, CPA 2019 has incorporated the exceptions to product liability action under Section 87, listing out conditions where product liability action cannot be brought against a product seller or a product manufacturer. Pertinently, a product seller is not liable if the product was misused, altered or modified at the time of harm. Similarly, a product manufacturer is not to be held liable if the product was purchased for use at the workplace by an employer and the employer was provided with requisite warning and instructions; or if the product was legally meant to be used under the supervision of experts; or if the danger concerning the product is obvious or commonly known to the user or consumer of such product.
- Central Consumer Protection Authority
Vide Notification dated 23.07.202010, the Ministry of Consumer Affairs, Food and Public Distribution has established the Central Consumer Protection Authority ("CCPA"), as a body corporate having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued. Under Section 10 of CPA 2019, the CCPA is empowered to regulate matters relating to the violation of rights of consumers, unfair trade practices and false or misleading advertisements, which are prejudicial to the interests of public and consumers and to promote, protect and enforce the rights of consumers as a class.
Pertinently, the CCPA is included in the definition of 'complainant', thus making it possible for it to initiate class actions suits on behalf of the consumers for any unfair trade practices or misleading advertisements. Further, the CCPA has been empowered to inter alia inquire or investigate a violation of consumer rights or unfair trade practices.
A complaint may be forwarded either in writing or in electronic mode to the CCPA. Upon receipt of such information or complaint, or upon receiving directions from the Central Government, or of its own accord, the CCPA may undertake investigation through a separate investigation wing of its own.
CCPA is empowered to promote & enforce the rights of the consumers, regulate misleading advertisements, and impose penalties for false and misleading claims. In cases of misleading advertisements, CCPA can impose a penalty of up to Rs 1,000,000 and a jail term for up to two years. In cases where manufactures and service providers are habitual offenders, they may be imposed with a penalty of Rs. 5,000,000 and a jail term up to five years11. CPA 2019 also prohibits the endorser of a misleading advertisement from endorsing that product or service for a period of up to one year. For every subsequent offence, the period of prohibition may extend to three years.
- Misleading Advertisements
CPA 2019 provides adequate regulatory mechanisms to protect consumers who fall victim to misleading advertisements. Section 2 (28) defines 'misleading advertisement' as an advertisement which- falsely describes a product or service; misleads consumers as to the quality, nature, substance or quality of the product; gives a false guarantee about the product; or deliberately conceals important information. The law seeks to hold manufactures, service providers, endorsers, and celebrities liable for misleading advertisements which are prejudicial to the interests of consumers as a class. Nonetheless, such endorsers or celebrities will not be held liable if they prove that due diligence as to the quality of the product was performed to confirm the veracity of the claims made for endorsing the product.
- Unfair Trade Practises and Unfair Contracts
The 1986 Act included six types of unfair trade practises like false representation, misleading advertisements etc. CPA 2019 adds three types of practices to the existing list namely : (i) failure to issue a bill or receipt; (ii) refusal to accept a good returned within 30 days; and (iii) disclosure of personal information given in confidence unless required by law or in the public interest.
Also, the inclusion of 'unfair contracts' under the CPA, 2019 has broadened the grounds for filing complaints by the consumers. The consumers can now challenge the contracts which are unilateral and unreasonable.
As per Section 2(46) of CPA, 2019, "unfair contract is a contract between a manufacturer or trader or service provider on one hand and a consumer on other hand if it causes a significant change in rights of a consumer including the following, namely:-
(i) requiring manifestly excessive security deposits to be given by a consumer for the performance of contractual obligations; or
(ii) imposing any penalty on the consumer, for the breach of contract thereof which is wholly disproportionate to the loss occurred due to such breach to the other party to the contract; or
(iii) refusing to accept early repayment of debts on payment of applicable penalty; or
(iv) entitling a party to the contract to terminate such contract unilaterally, without reasonable cause; or
(v) permitting or has the effect of permitting one party to assign the contract to the detriment of the other party who is a consumer, without his consent; or
(vi) imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage".
Unfair Contracts were earlier kept outside the purview of the 1986 Act as the Act did not provide for any remedial action against such contracts. In the absence of any provision to this effect, consumers could not have approached the relevant forums available to remedy the wrong caused by Unfair Contracts.
- Alternate Dispute Resolution and Compounding of Offences
The CPA 2019 provides for a comprehensive scheme for Mediation under Sections 74 to 81, indicating a clear intention on part of the lawmakers to maximize the use of Mediation for settling consumer disputes. In contrast to the 1986 Act, the CPA, 2019 attempts to institutionalize the process of Mediation. Thus, under Section 74 of CPA 2019, each State Government is obligated to establish consumer mediation cell to be attached to each of the District Commissions and the State Commissions of that State. Similarly, the Central Government is required to establish a consumer mediation cell to be attached to the National Commission and each of the regional Benches.
Pertinently, on 24.07.2020, the National Commission, with the previous approval of the Central Government, made the Consumer Protection (Mediation) Regulations, 2020. These Regulations are intended to make Mediation more effective.
- Deemed Admissibility of the Complaint:
Under CPA 2019, a complaint filed by a consumer should be ordinarily decided within twenty-one (21) days from the date of filing. However, if the consumer commission fails to decide the issue of admissibility within twenty-one days, the complaint shall be deemed to be admitted after the expiry of such specified period12.
- Review and Revision:
CPA 2019 has conferred the consumer commissions with the power to review their orders if there is an error apparent on the face of the record, either on its motion or on an application made by either of the parties13. Additionally, the State Commission and the National Commission have also been conferred with the power of revision under Section 47(1)(b) and Section 58(1)(b) of the CPA, 2019.
- Limitation Period for Filing the Appeal and Provisions regarding Pre-Deposit:
The limitation period for filing the appeal from District Commission to State Commission has been increased from 30 (thirty) days to 45 (forty-five) days while retaining the power to condone the delay14. Under CPA, 2019, an appeal shall only be entertained by the State Commission, National Commission and Supreme Court of India, on the deposit of 50 (fifty) per cent of the total amount, required to be paid by the Appellant.15 Under the 1986 Act, the pre-deposit amount for filing the appeal before the State Commission was INR 25,000, a maximum amount of INR 35,000 before National Commission and INR 50,000 before the Supreme Court of India.
Consumers have long been on the receiving end of market manipulations and unfair trade practices. CPA, 2019 resonates with every major concern that an honest consumer may face. This may also be a warning signal to mischievous players indulging in unfair market practices. CPA, 2019 has shifted the burden of accountability and caution upon the manufactures, sellers, and service provider, giving more power to consumers.
1 'inventory e-commerce entity' is an entity which holds goods in stock or services and sells it directly to the consumers and shall include single brand retailers and multi-channel single brand retailers. See S. 2(f) of E- commerce Rules, 2020.
2 'marketplace e-commerce entity' is an entity which acts as a mere facilitator. The seller displays it products on the online platform and the buyer interested in purchasing the product places the order through the online platform. On confirmation of the order, the product gets delivered where the buyer resides. See S. 2(g) of E- commerce Rules, 2020.
3 See S. 34 of CPA. 2019
4 See S. 47 of CPA. 2019
5 See S. 58 of CPA. 2019
6 M/s Pyaridevi Chabiraj Steels Pvt. Ltd v/s National Insurance Company Ltd. & Ors, Consumer Case No. 833 of 2020, decided on 28.08.2020.
7 See S. 11 (2), Consumer Protection Act, 1986
8 The Liability Maze: The Impact Of Liability Law On Safety And Innovation (Peter W. Huber & Robert E. Litan Eds., 1991).
9 Lilley v. Johns-Manville Corp., 408 Pa. Super. 83, 596 A.2d 203, 207 (1991),
10 Notification, S.O 2422 (E), dated 23.07.2020, Ministry of Consumer Affairs, Food and Public Distribution (GOI). Available at - https://consumeraffairs.nic.in/sites/default/files/Estt%20of%20CCPA.pdf
11 See S. 89 of CPA. 2019
12 See 36(2) proviso of CPA 2019
13 See S. 40, S. 50 & S.60 of CPA, 2019.
14 See S. 41 of CPA, 2019
15 See S. 41, S.51 and S. 67 of CPA, 2019
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