The rights of a consumer cannot be protected fully unless there is complete enforcement of the orders passed by the relevant consumer fora. Providing speedy redressal of justice in a complaint which the forum finds to be just is one the objectives of the Consumer Protection Act 1986. Lex Witness bureau investigates procedural aspects of enforcing consumer rights and the issues related thereto.
Come festival and the market is found flooded with adulterated food products. One of the national dailies reporting on the situation around this Diwali has written: “Despite the police and Food and Drug Administration (FDA) officials cracking down on sweet marts in the last two days, activists claim that adulterated food items — especially khoya, mawa, paneer and warak (spurious silver foils) — have already flooded the market”.
Increasing technological sophistication has brought revolutionary changes to the manufacturing processes. Yet technological advancement is abused by the unscrupulous business people to hoodwink the consumers and flood markets with defective, unsafe, pirated and injurious products. Whatever technology may achieve it would probably not be able to curb the element of greed. Unscrupulous business entities are always looking out to make profits through unethical and illegal means.
If we go back to the history of the consumer movement it had precisely gathered momentum in mid-eighties to protect consumers from such unethical and unfair business practices. The Indian government has done a fairly good job by legislating the Consumer Protection Act, 1986 (the Act). In this story we are going to delve into the status of the consumer movement in the country, the procedural aspects of enforcing one’s consumer rights and the issues therein.
When a consumer pays for any goods he buys or the services he avails of, there is a legitimate expectation as to the quality of the goods and services conforming to the standards laid down by the law. But the number of cases in the consumer fora bear a testimony to the fact that all is not well at the consumer rights front. While goods are found to be defective, unsafe, and injurious to health, the services are found to be improper, inadequate and negligent. Such a situation is bad for the economy and the citizenry.
As per the Act, one must be a consumer and one must have a complaint against a trader or a service provider. One qualifies as a consumer under the Act if one has bought the goods for aconsideration i.e. payment of price whether fully or partly paid but the same should not have been done for a commercial purpose or resale. And the complaint is nothing but a specific allegation as to- unfair or restrictive trade practice adopted by any trader or service provider, the goods or services bought/availed of are defective/deficient, the price or fee charged by the trader or service provider is in excess to what is represented by way of display or the goods or services are hazardous to life and safety.
A consumer must also keep in mind that there is jurisdictional fine balance between the Consumer Fora and the Civil Courts as both are established for specific purposes. And generally a consumer forum is considered as an additional and summary remedy as the procedure provided under the Act is a summary procedure in nature. Therefore consumer fora have maintained a clear demarcation in entertaining consumer disputes. In Harbans & Co. V. State Bank of India 1994 (I) CPR 381 it was held that if a complaint requires Complex questions of facts and law, like allegations of fraud etc., to be determined which may require investigation etc. then the civil courts have been held to be a proper fora for the same. Secondly, the Act further requires that the goods or services availed of for the purpose of personal consumption and not for the commercial purpose such disputes can also not be entertained by the consumer fora.
What is your assessment of the situation as to the enforcement of the consumer forum orders?
Currently it is very weak though Section 27 has been amended and the powers of a 1st Class magistrate have been granted.
What measures would you suggest to make enforcement of consumer rights more viable?
There should be a separate set up controlled by the State Commission with a Tahsildar and also Police officials deputed from the parent department. Then it would be more effective.
How does your organisation deal with enforcement issues or any other consumer issue for that matter?
We have completed almost two and a half decades of hard work and have earned a reputation, credibility and therefore we rarely face a problem of enforcement. However, if it does happen, we are confident that they will yield when we put pressure. One more reason for our success could be that we have the good support of the media and we use it to expose and this also may be a reason for our getting success. I am also a qualified journalist and write columns as well as articles regularly. Therefore, this also adds up to our effort to get results.
Attachment of property for non compliance of interim orders
Section 25 provides for the enforcement of the interim orders of the consumer fora and for that it provides for a procedure. It provides that if an interim order is not complied with by a defendant then his property can be attached.
Further Section 25 provides that if the non compliance still continues after the lapse of 3 months, non-compliance continues, attached property may be sold and damages may be paid to the complainant out of the sale proceeds.
Section 25, in addition to attachment and sale of the property of the defendant it further provides for securing payment of any amount due from any person under any order from the consumer Fora. It provides that a person entitled to any amount may make an application to the concerned consumer fora which may issue a certificate to the collector of the district and the collector shall proceed to recover the amount in the same manner as arrears of land revenue.
The question as to the simultaneous invocation of both these provisions is possible especially in case of an Interim Order, the execution of which is provided for specifically under Section 25 This specific question came before the Division Bench of Hon’ble Bombay High Court which phrased the question like this:“Would, therefore, because there is a provision for enforcement of an interim order under Section 25, exclude the application of Section 27 on the ground that it does not expressly refer to an interim order?”And the Hon’ble Court answered the same as follows:
“24. to give greater protection to the consumer and to make execution of ordersmore effective and less expensive which is the object of the Act and to provide for speedy justice, we see no reason as to why the provisions contained in Section 27 should be restricted only to final orders… .” The object, therefore, is to make the Act more stringent and leave no discretion for imposing lesser punishment than the minimum what is prescribed under Section 27. Considering this object, in our opinion, the compliance by traders and other persons would be more effective if we read the benevolent legislation in such a manner so as to avoid delay, making it less burdensome on the consumer and give him speedy redressal of justice in a complaint which a forum finds to be just. 25. We, therefore, have no hesitation to hold that Section 27 which uses the expression ‘any order’ must include within its sweep not only final orders, but all orders including interim orders which are also capable of execution under Section 25. Section 27 makes no distinction between order and final order, it involves any order. In our opinion, therefore, we cannot agree with the view expressed either by the Consumer Forum or by the State Commission.”
After discussions with various consumer complainants, the practicing lawyers and co it has emerged that the procedure provided for enforcement of the orders of the Consumer Fora is not just fine but is undoubtedly pretty effective. But there are other tricks up the sleeve of the defendants which are used by them to frustrate the cause of the complainants. In the Act three distinct types of difficulties arise in the implementation of the consumer fora orders:
It emerged that one Complainant had filed a complaint before the District Forum he kept on contesting the complaint and when as adverse order was passed against him he simply vanished in the thin air i.e. he changed his residence and shifted his office. This appears to be a favourite practice of the small time traders or professionals who remain in fly by night mode. And guarding the interests of the consumers against such people is really adifficult task and law can also not help in such a situation.
Need for reforming enforcement procedure under Consumer Protection Act, 1986
Statutory amendments must be brought in to defeat the fraudulent intent of the Defendants in a consumer case who are more interested in frustrating the complainant by abusing the appeallate and revisional jurisdiction of the Consumer Commission. This is practised generally by small time businesses or professionals who when a final order is passed, they simply shift their office to frustrate any such liability. And in such a situation the complainant is left with nothing but a bare order which cannot be enforced due to want of address.
To remedy such a situation the amount of statutory deposit to file appeal, etc. must be raised by bringing in the amendment to the Act to serve the interests of small litigants and the money should be directly released to them after the disposal of the appeal/ revision subject to furnishing the indemnity bond.
Nature of power provided under Consumer Protection Act, 1986 to enforce Consumer Forum orders
The power of the consumer fora to enforce their orders is derived from Section 25 and Section 27 of the Consumer Protection Act, 1986. While the power under section 25 is essentially civil in nature and the power under section 27 is semi-criminal in nature.
Whether section 25 or 27
Of the two, procedure under section 25 must be availed of and when it is found that it is proving to be ineffective then only the semi-criminal remedy may be availed of. Besides, a Consumer Forum, while exercising its powers under section 25, is of the opinion the respondent is playing truant. Then in such a scenario the Forum may issue a notice to the respondent to appear before it under section 27, and if he still does not pay heed then at first bailable and later on nonbailable warrants may be issued against him.
Appealability of the orders under S. 27 of the Act
Section 27A provides for the appeal against the orders passed under section 27. However, the scope of this power is limited as the appellate courts apply their mind only to the fact whether the correct procedure has been followed or not.
Efficacy of the enforcement provisions under Section 25 and 27 of the Act
Under Section 25 if Judgment debtor tries to escape the civil liability in some manner or the other the Consumer Fora may resort to the criminal proceedings under Section 27 thereby the chances of its order not being complied with are almost nil. It is seen that working of Section 27 has been reasonably quite effective because the Consumer Fora themselves have the power to sentence. The advantage of the Consumer Fora is that while admitting appeal/ revision the appellant may be asked to deposit the amount of the award in addition to the statutory amount. Assuming sometimes, that the appellant loses and has already deposited the amount with the Consumer Commission pending the order in that case the Commission may straightaway ask for the release of the amount to the complainant without resorting to Section 27 proceedings.
The strength of the Consumer Fora
The Consumer Fora have been pretty effective in mitigating the legal hassles faced by the litigants as compared to the cases pending before the civil courts. The landmark judgment of the hon’ble Supreme Court in Dr. J.J Merchant and Ors. V. Shrinath Chaturvedi 2002 (6) SCC 635 has also made the procedure a bit complainant friendly by doing away with the rigours of the civil law while doing away with the procedural technicalities like it has allowed video conferencing instead of personal attendance and also replaced cross examination by putting mere interrogatories to the witnesses. This judgment has added impetus to the consumer movement which infact is nothing but an additional remedy to the civil remedies.
Another method used by defendants is not to acknowledge any legal or courts’ communications and managing the same through any legal/ illegal means. In such a scenario a more proactive approach on the part of the complainant is required that he will have to keep a track of the defendant and inform the Fora as to the correct whereabouts of the defendant so that the orders may be enforced against the defendant.
In Yogeshbhai D. Shridharvs Consumer Education And Research III (2004) CPJ 63 NC, precisely the issue of defendant playing all tricks against the complainant, by pleading non service came up before National Commission. It was canvassed before the hon’ble Commission that he was never served with any notice – hence he never got any opportunity to defend himself. In this regard he draw the attention of the hon’ble Commission towards the Notices issued by the District Forum, which is issued to ‘Dhanraj Electronics’ and also to the reply filed by Dhanraj Electronics Vikram Chambers, Ashram Road Ahmedabad’ stating that there is no such person by the name of Yogesh Bhai Shah and no AC was purchased from them by the complainant. It was also stated by them in the letter addressed to the District Forum that there is no record with them of any AC purchases from them nor has any proof ofpurchase produced – hence Notice was returned. The hon’ble Commission after perusing the record found that the same question had been repeatedly gone into by all the forums below extensively. And the For a below had found that that Yogesh Shah, Yogesh Shridhar, Yogesh Patel is the same person, and therefore had directed him to comply with the orders of the District Forum. The hon’ble National Commission observed that:
“We are clearly of the view that from the date of receipt of notice which was returned, it was a calculated move on the part of the Petitioner to avoid service and not to face the proceedings before a Consumer Forum. There could not be many Yogesh Shridhar or Shah in Dhanraj Electronics. It appears to be a clear case of an attempt to undermine the authority of a quasi judicial body by being clever. Not only he does not appear before the District Forum, but goes into file appeal through his close relatives as observed by both the forums below. In the executing proceedings, District Forum issued notices to Yogesh Shah/Yogesh Shridhar/Yogesh Patel…”
The Hon’be National Commission further observed that:
“We are left in no doubt that the Petitioner was aware throughout about the proceedings of the case and attempted unsuccessful to (SIC) both the lower forums below to believe the story that he was never served. It did not work. His alias and different companies leave a trail of bad businessman with not so noble intentions. In a complete abuse of process of law – he is attempting to thwart the flow of justice to the complainant. In our view the order passed by the District Forum dated 15.10.97 became final after appeal against the order being dismissed and no Revision Petition filed against the orders.”
Except for time taken and small procedural niggles, the objective with which the Act was enacted has largely been achieved. And through discussion it has emerged that it is viewed as a very convenient forum for redressing grievances
Hence it can be observed that the procedure provided for the enforcement of Consumer Fora orders is not only adequate but also very effective. Just that a complainant needs to be careful and should be aware and vigilant as to the points raised above so as not to allow any latitude to the defendant to manipulate the system to deprive him of his rightful claim
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