Q1. I have instituted a complaint before the Consumer Court
against a Medical Practitioner. My complaint has been challenge on the
ground that a Medical Practitioner cannot be sued under the Consumer Act. What
does law provide?
A. Yes, a medical practitioner
can be sued under the Consumer Protection Act 1986 for his or
her professional negligence resulting in damage to patient. Section
2 (d) in defining a consumer in Clause (ii) uses the expression ‘hires and
avails of”. The word “hire” means employ of wages or fees”. Secondly the words
“any service” in s. 2 (d) (ii) in Consumer Protection Act. A eloquent to bring
the delinquent medical practitioners within the ambit of Consumer Protection
Act. Thirdly, s. 2 (o), Consumer Protection Act which defines service exempts
only two types of services, one “service free of charge” and another “contract
of personal service” postulates a relationship of master and servant. A medical
man whose service is requisitioned for a patient answers the clause ” contract
of service” but never “a contract of personal service”. So, a negligent medical
professional can be proceeded under the Consumer Protection Act 1986.
Q2. I had purchased seeds from a party. The seeds did not
germinate. The other party took the plea that I was not a consumer. Whether
purchase of seeds for the purpose of agriculture is purchase for commercial
purpose?
A. Purchase made for agriculture is
not for commercial purpose. Therefore, the complainant is a consumer and
entitled to seek redressal of his grievance in a Consumer Court against the
party which supplied defective seed to him.
Q3. I had got a confirmed ticket on Sahara Airways. The flight was
later cancelled on account of technical snag. Is it a deficiency in service?
A. Cancellation of flight on account
of technical snag is not deficiency in service as it is due to unavoidable
circumstances. However, you ought to be allowed refund of the fare but no
compensation can be granted on account of any loss suffered by you (if any)
because of the said cancellation.
Q4. I was allotted a Maruti Car. There was a delay in delivery of
the car. Subsequently, the dealer called upon me to make further payment as the
price of the car had gone up. Am I liable to bear the price increase on account
of delay caused by the dealer?
A. You are not liable to pay any
price increase in the above mentioned circumstances since the increase in price
is totally on account of the delay on the part of the dealer for which a
consumer cannot be made to suffer.
Q5. Does rejection of application for grant of loan by a Bank
constitute deficiency in service for which I can approach the Consumer Court?
A. The Bank has a wide discretion in
the matter of granting loans and advances and continuing disbursement of loans
sanctioned .The Consumer Courts cannot sit in judgement over the discretion
exercised by the Bank and as such you will not succeed in any such action, if
taken by you.
Q6. The transformer, which was supplying electricity to me, got
burned and was replaced by the department after about two months. However,
However I was billed with consumption charges. Am I liable to pay any such
charges when there was no consumption of electricity by me?
A. When the electricity was not
supplied and the electricity bills produced by you showed that there was no
consumption of electricity by you and admittedly the reason for that was
burning of the transformer, you are not liable to pay any minimum charges.
Q7. I had applied for electricity connection. However, power supply
was not provided to me. Can I seek redressal of my grievance in Consumer Court?
A. Your grievances is that you
application for electricity connection was not granted. Electricity may be a
service but the hiring of the service is not complete till the Electricity
Board sanctions service. Hence, you can’t approach a Consumer Court for
redressal of your said grievance. Your remedy is to file a civil suit in the
Court of law against the Electricity Board.
Q8. Can Consumer Forums adjudicate disputes involving scale of pay?
A. No, Consumer Forums do adjudicate
dispute-involving scale of pay.
Q9. I had applied for subscription in Rajlakshmi scheme of UTI. The
essence of the scheme was that the sum of money deposited with the UTI would
grow 21 times in 28 years. However subsequently, the UTI extended the maturity
date by two years. Can I approach a Consumer Court?
A. Unilateral alteration of terms of
payment by the UTI in their above scheme is “Deficiency in Service” for which
you can seek relief in a consumer court.
Q10. My car met with an accident. The insurance claim was rejected on
the ground that my driver was not holding valid driving license. Should I
approach a Consumer Court for seeking the Insurance claim?
A. The Consumer Court will
not be able to grant you any relief since the driver employed by you did not
have a driving license. You were bound under law to check the ability of the
person employed by you and the failure in holding a license for driving well
debar you from claiming the Insurance Claims.
Q11. I had purchased a fridge, which suffered from several defects, and
those defects could not be removed or repaired by the Company. Can I seek
redressal of my grievance?
A. You can certainly seek redressal
before the Consumer Forum. In a similar case as yours, the Forum
appointed a Local Commissioner who corroborated the version of the complainant.
It was held by the Forum that the fridge was found to be defective within the
period of warranty. The opposite party was directed to replace the unit with a
new one.
Q12. I filed a complaint before the State Commission regarding payment
of policy amount in death claim, which was allowed to me by the State
Commission. I wish to file another complaint claiming the Double Accident
Benefit. Can I do so?
A. It is well-settled principal of
law that one can not educate the same cause of action before a court of law or
before another adjudicating Forum after it had already been adjudicating upon
earlier. This is the basis for the relevant provisions under the Code
of Civil Procedure, 1908 (CPC) which embody a sound principal of law
to obviate multiplicity of litigation. Even though Consumer Forums are not
governed by the CPC yet the sound principles of law and procedure embody in
that CPC are followed by the Forums. Consequently, second complaint filed on
the same cause of action would not be maintainable.
Q13. I had applied for allotment for a plot and paid Rs.100 as
registration fees. At the time of draw my name was not included. I lodged
a complaint before the Consumer Forum, wherein the Housing Board
argued that I was not a “Consumer” since no allotment had taken place. What is
the correct position in law?
A. Where the complainant had paid for
the cost of application form as well as the registration fee, he is the
potential user and the nature of transaction is covered by the expression
“service of any description”. As such the complaint is maintainable. The
Housing Board is deemed to have undertaken to include your name in the draw of
lots for allotment of a plot. However, your application has not been considered
because your name was not included in the draw. The only inference that can be
drawn is that the person who prepared the list was negligent in discharge of
his duty. You can proceed on this ground.
Q14. My grievance is that I had registered with the M.I.G. scheme of the
Haryana Housing Board and the board had escalated the price of the flats three
times within a period of two years. Does my case lie within the jurisdiction of
Consumer Forums?
A. It has been laid down that
under Consumer Protection Act the pricing policy of flats
cannot be adjudicated upon by Consumer Forums. The question of
pricing of the flat by Housing Board is not a Consumer dispute. If any amount
has been illegally charged from you by Housing Board , you can recover the same
through a civil court.
Q15. A Complainant filed a case against our company who’s grievance
related to transactions dating back to years 1994-95 while the complaint was
filed in the year 1999. Is the complaint within time?
A. Session 24 A of the Consumer
Protection Act, 1986 provides a limitation period of two years within which the
complaint is required to be filed. In the light of the above, the complaint is
time barred and hence not maintainable.
Q16. My grievance is that I am not getting regular supply of water. What
can I do against the concerned Government Authority before a Consumer Forum?
A. The Government supplying water is
performing a statutory functions which can not termed to be rendering of
service. Hence the Consumer Forums have no jurisdictions to entertain such a
complaint.
Q17. My grievance is that a Hospital where I was treated declined to
give me the medical records pertaining to my treatment and operation for Ulcer.
Can it be termed a deficiency is service on the part of the hospital?
A. There is no negligence on the part
of the hospital by reason of such failure to supply the said papers unless
there was a legal duty cast on the hospital to furnish such documents to the
patients, which has to be seen from their Rules and Regulations.
Q18. A registered letter sent to me was not delivered. What is the
liability of an employee of the Post Office in this matter?
A. Section 6 of the Indian Post
Office Act 1878 provides that the Government shall not incur any liability by
reasons of the loss, mis-delivery or delay or damage to any postal article in
course of transmission by post except in so far as such liability is made in
express terms to be undertaken by the Government and no Officer the Post Office
shall incur any liability by reason of such loss, mis-delivery , delay or
damage unless he had caused the same fraudulently or by his willful act or
default. In view of the said Section 6, your complaint is not maintainable
unless there is allegation an of fraud or willful act of negligence of any
postal employee.
Q19. A Superfast Train in which I was travelling was delayed for long
hours without any reason. Can this be a ground for filing a complaint against
the Railways?
A. Additional charges are taken by
the Railways from the passengers travelling by a Superfast Train. If the trains
are delayed for long hours and the delay has not been properly explained it
amounts to deficiency in service and therefore the Railway is bound to refund
the excess charges.
Q20. I am a shareholder of HLL. Despite having made all the payments,
the share certificates were delivered very late. I have claimed the loss in
terms of the escalation in the market price of the share. Is my claim valid?
A. Share market is a speculative
market and there is bound to be fluctuation in value of shares of the company
depending on market condition. Merely because the value of the share went up
you are not entitled to get compensation at the increased rate, as damages are
remote damages.
Q21. I had paid the telephone bill but inspite of that the telephone
department disconnect my telephone without any notice. Can the department
disconnect the telephone without notice to the subscriber?
A. Disconnection cannot be effected
without notice to the subscriber. The Department is bound by law to give such a
notice. You can seek compensation for the same alongwith restoration of the
connection.
Q22. I had bought a scooter in last May, after some months it is
creating problem to me. When I complained to Service center they serviced it
and say the problem was removed. But last week it is creating the same problem
again. When I complained them they return me the Scooter next day and they say
again that the problem was removed. But today it is creating the same problem
to me. Can I go to file a case in consumer forum.
A. You can definitely file a case
before the Consumer Forum but the ideal remedy at this stage would be to complain
to the company i.e. Bajaj Scooters Ltd. against the service center and wait for
their response. In case nothing is done even after this, then it will be
prudent to file a case in the Consumer Forum.
Q23. We have been buying Parag milk packet 500 ml from a retailer. The
packet though gives only 400ml. What action can we take against the company.
A. There is clear case of cheating
and you can file a criminal complaint under Section 421 of the Indian Penal
Court. Besides filing a Criminal complaint, you can also approach a Consumer
Court for this purpose. You must collect adequate evidence before doing the
same, i.e.; retain a sealed packet of Parag Milk which indicates the quantity
of 500ml but actually weighs 400ml.
Q24. I had deposited a booking amount with Pal-Peugeot, letter the same
was cancelled but no refund has come so far, for the last two years. The matter
was referred to Delhi Consumer forum who referred to than (Maharashtra)
consumer forum. Documents were sent to them but of no avail, again it was sent
by us to Delhi as the deposit was made to Premnath Motors Delhi but Delhi
Consumer forum has again written to follow than.
A. You should file an appeal before
the State Commission against the order of the Consumer Forum Since the cause of
action arose at Delhi, i.e.; the Distributor was located at Delhi and money
also seems to have been paid at Delhi the Delhi Consumer Forum had the
jurisdiction in case the distributors (who work at Delhi) have been made
parties to the said petition. You should file an appeal against both the
manufacturers as well as the distributors, i.e.; Prem Nath Motors against the
order.
Q25. I purchased on 1.1.2000 from a shop in Panjim, Goa a bottle of
Scotch Whiskey. I find that it is not original in that it tastes too sweat. It
appears to be spurious. I have written letters to the MD, Goa Tourism but there
is no reply. What remedy is available to me to the relief.
A. You can certainly file a complaint
before the Consumer Forum against supply of Spurious Whisky supplied to you as
well as also lodge a Criminal Complaint in this regard. However, the difficulty
(which is a major one) is that since the bottle of Whisky has been open, it
will be virtually impossible to prove that the contents of the Whisky are the
same as they were when the bottle was sealed. Since, the legal system is
totally based on evidence / proof, it would not be a worthwhile exercise to
institute any legal proceedings in the facts and circumstances of the present
case.
Q26. I understand that under the Consumer Protection Act, a complain has
to be made within 2 years from the date on which the cause of action arose.
What happens in a case where the 2 year period has elapsed because the I spent
the time writing(and replying to) to the manufacturer in the hope that he would
replace the good? What argument can I give to the Forum in response to the plea
of 2 years which I know will be taken by the manufacturer?
A. It is correct that the Consumer
Protection Act, provides for a limitation period of two years for filing a
complaint and the said period starts from the date when the cause of action
arose. The same is provided under Section 24-A of the Consumer Protection Act,
1986. However, the Consumer Forum has the power to entertain a complaint even
after the said period in case it is convinced that the complaint could not be
filed within the said period on account of certain sufficient cause. Thus you
would have to give a good explanation in order to have the delay condoned from
the Consumer Forum. In case the only ground pleaded by you is that you were
corresponding with the Manufacturer and hoping to get the goods replaced, the
same would not be construed as sufficient reasons for condoning the delay.
Q27. Can I claim for replacement. If they do not replace the vehicle can
I move to consumer forum. Who should I make a party i.e. the dealer, or the LML
company or both of them. The dealer is in Karol Bagh the company office in
Greater Kailash and factory’s regd. office in Kanpur in which Jurisdiction/Zone
should I file the complaint. Or any other detail which you feel Justified to
provide me.
A. You should again inform the
Company about all the facts and steps taken by them for removing the defect in
writing and further pursue the matter with the Company and try to get the
defect rectified. In case your efforts fail you can file the complaint with
Consumer Forum at Delhi by making both the Company and the Dealer as parties to
the complaint. Replacement is allowed by Forum if the defect is such that it is
not possible to rectify the same. Give the Delhi address of the company and
file the complaint at Delhi.
Q28. I injured my knee in a game of football on 31st December 1997. It
was diagnosed as ACL TEAR. For that I was operated upon in the knee on 2nd March
1998. After the operation my knee developed stiffness, which is unusual in such
cases even after undergoing physiotherapy for two months I was unable to bend
or straighten my knee. So after two months of operation my knee was manipulated
under anesthesia to relieve stiffness. A plaster was put on the knee for one
month. I was told to start walking . I used to walk with a limp. For about 8
months I continued to walk with a limp but then my condition deteriorated &
in March-99 I had to start using crutches to move around. To find out the cause
of this pain I underwent investigative arthoscopy in June-99 which revealed the
following 1. ACL Laxity 2. meniscus tear 3. patellofemoral osteoarthritis . I
was advised by the doctor to do physiotherapy, and take painkillers for the
pain, I am still doing physiotherapy, but neither the pain has reduced nor am I
able to walk without crutches, this whole experience has affected my life
badly. Can I sue the doctors for negligence / inefficiency. My both operations
were carried out in military hospitals, and they were done free of cost since I
am serving in army. So I cannot go to Consumer protection court. Please
advise?.
A. You can file a writ petition in
the High Court of judicature against the hospital, making doctors responsible
for your condition a party. You can also seek damages alongwith the appropriate
action against the doctors and the management in the writ
petition.
Source : Vakil No.1.