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Amend some amendments

R. Desikan

The Government has placed before the Rajya Sabha, the suggested amendments to the Consumer Protection Act. These amendments have raised a storm of protest amongst consumers and activists throughout the country. At the initiative taken by the Consumers' A ssociation of India (CAI) and CAG, Chennai, a workshop was held a few weeks ago to discuss the suggested amendments.

The CAI and other groups have planned to lobby with the MPs to introduce some changes in the proposed amendments so that the Act can retain its original purpose of protecting the consumers. Here are a few salient points of the approved final draft with t he comments and recommendations that were made at the workshop.

* The new amendment enables that the cause of action in consumer courts does not die with the death of the consumer but that his heirs and legal representatives can be pleaded on his behalf in the matter.

* The new amendment places an onus on the trader not to sell those products which he ought to know with due diligence are unsafe to the public, even when there is no law or standards pertaining to those goods.

* Terms such as `hazardous of life' and `unsafe to the public' should be defined.

* There should be provisions that would specifically empower the State Commission or District Forum to appoint commissioners to collect evidence.

* The providers of the products and services should pay all compensations and costs besides the interest charges ordered by the consumer disputes redressal agencies when they are found responsible for the cause of action. This should uniformly be made ap plicable to both the public and the private sectors.

* The acceptance of service of notice through other means of transmission (including Fax) is a welcome amendment. It should be clarified whether e-mail is an acceptable method of service of notice, bearing in mind the recent made amendments to the Eviden ce Act.

* One of the amendments ensures that the limited power of the Consumer Commission to impose imprisonment or fine for the offences committed under Sec. 27 of the COPRA is replaced with a broader power granted which is likened to a First Class judicial mag istrate for the purposes of the CrPC. And this poses a few problems which can be overcome by vesting the consumer courts with the powers to punish in case of contempt being committed of the orders passed by them.

* A definite time limit should be set within which interim applications should be adjudicated.

* In respect of interim orders, a provision should be introduced which would enable the District Forum or the State Commission to punish the party that is guilty of disobedience of interim orders by instituting contempt proceedings against such a party.

* An appeal to the Supreme Court would require the appellant to deposit a sum of Rs 50,000 or 50 per cent of the amount before the court, whichever is less. The National Commission will not hear any appeals unless the appellant deposits either 50 per cen t of the decretal amount or Rs 35,000 before the commission prior to the institution of the appeal.

* There should be a provision to waive the deposit of the amount prior to the institution of appeals in exceptional cases.

* The procedure that is followed by the District Forum for the disposal of original petitions should be followed by the State Commission as well for its original jurisdiction.

* The proposed bill should make it clear that jurisdiction of the District Forum and State Commission will be determined on the basis of the value of the claim made in the complaint. Currently there is some confusion regarding whether the jurisdiction wo uld be based on the value of the claim made alone or would be determined taking into consideration the value of the claim and the value of the impugned goods or services.

* The new amendment provides appointment of benches. The workshop felt that there is no clarity. Some questions that arise are -- Who will preside over these benches? What is the qualification for appointment of a President of an additional bench? Creati on of additional benches is a welcome suggestion. However, more thought and care is to be applied in drafting this very important provision

* The amendment also seeks to bring down frivolous appeals and appeals filed only for the purpose of delaying the compliance with the orders of the District Commission, by seeking that the appellant deposit either 50 per cent of the decretal amount or Rs 25,000, whichever is less. There should be a provision to relax this provision in deserving cases.

* An amendment proposes that a complaint should be decided within three months from the date of receipt of notice by the opposite party where the complaint requires no analysis or testing and five months where it does. The Amendment Bill should incorpora te the provision by which a complaint should necessarily be disposed off within three months from the date the complaint is admitted and the current provision in the rules should not be diluted.

* The new provision proposed to replace the existing Sec. 13(1)(a), states that the admitted complaint should be referred to the opposite party within 21 days after it has been admitted. Thus long periods of time in which adjournments are granted to send notice is sought to be avoided.

* Another amendment provides the District Forum with the power to grant interim orders that are just and proper in the facts and circumstances of the matter. However, while granting the forums the power to grant interim injunction. Thus, while making an interim order, the Forums should give a reasoned order. The copy of the interim order should be communicated to the respondents within a specified period of time. All the powers that have been granted to the district forums under these provisions should also be made available to the State Commission.

* The proposed amendment provides for the payment of court fees for consumer complaints. This goes against the very essence of the Act in providing a cheap and affordable remedy for aggrieved consumers. Therefore it is proposed that fees be levied on co nsumer complaints only when such complaints are in respect of goods or services availed of for commercial purposes only. The workshop recommended that no fees should be levied on those consumer matters which are not of a commercial nature.

* The proposed amendments provide that the establishment of State Consumer Councils is to be made mandatory. A new provision is for the establishment of a District Consumer Council with the same objects as the State Consumer Council. This amended provisi on strikes at the very heart of the consumer law jurisprudence.

* Even though the amendment has a definition of Restrictive Trade Practice, the main body of the statute does not provide an application for such definition in any other part of the statute. This aspect should be addressed. The definition of deficiency a nd defect needs to be expanded in order to incorporate the concept of restrictive trade practice.

* The amendment bill proposes to introduce a change in the current CPA by extending the commercial purpose exclusion to encompass the services segment as well. There does not seem any rationale for the same, especially in view of the fact that the recent trend of decisions seems to be towards a more narrow interpretation of the term `commercial purpose'.

(The author is former Chairman, Federation of Consumer Organisations, Tamil Nadu. He can be reached at rdesikan@vsnl.com)