Overview
Businesses do work with an ultimate objective of customer acquisition and earning high profits out of the sales made to existing customers as well as new ones for which they adopt various marketing(advertisements) & sales techniques(cashback or discount offers). But, what happens when a particular commodity fails to do what it promises to? The Consumer Protection Act 1986 came into force before thirty years to provide a mechanism to enforce complaints related to any defects in goods/deficiency in services being offered in the market and to ensure a valid compensation is provided to consumers who are exploited by the expanding industrial and commercial sectors in the country. Similarly, the Consumer Protection Act 1986 was amended in the year 2019 to afford protection to consumers in the digital age of e-commerce.
The whole concept of consumer redressal starts when a particular consumer feels dissatisfied or cheated due to the failure of the quality of goods purchased or services so availed as they fail to offer what is promised (such as misleading advertisements i.e. Sensodyne toothpaste by Glaxo Smith was in news these days) that results in losses and suffering to the consumer for which he/she may file a complaint against the seller/respondent to the redressal agencies and civil courts to resolve their grievances. But, before this, the plaintiff will be required to serve a Legal Notice under s.80 of the Consumer Protection Act upon the respondent. The basic objective behind doing so is to allow the respondent to know about the issues and give him fifteen days to rectify the damages and compensate for the losses or contest the dispute in the consumer redressal forum. In case the respondent accepts the defects in his goods/ services, serving a legal notice may help the parties to resolve the dispute amicably without having to incur additional costs and time in the consumer forum or a court of law.
Consumer- Definition & Rights
Section 2(7) of the Consumer Protection Act 2019, defines a person who purchases goods or avails services for direct consumption by himself or his friends/family in exchange for a consideration. Therefore, a seller offers goods/services for free the consumer may not be able to receive compensation under the Consumer Protection Act. Further, the Consumer Protection Act 2019 has included customers who purchase goods/avail services through e-commerce delivery websites, and also includes receivers of electronic services such as insurance, etc. and has incurred monetary losses and mental suffering due to-
i. Damaged and Defective Goods- Consumers can approach various consumer disputes resolution forums due to the supply of defective, damaged, or unsafe products and deficient services from the seller/respondent.
ii. Unfair trade practices- Seller adopting unfair trade practices which directly or indirectly force the consumer to purchase goods or avail services such as tied-in purchases, non-issuance of a bill, denial to refund, etc.
iii. Market Malpractices- Sellers using a wide range of market malpractices such as false claims about product features, selling substandard goods, manufacturing spurious goods, and adulteration in food products come under this category.
iv. Misleading Advertisements- Selling goods or service with false claims or misleading advertisements for gaining consumer patronage and making high profits out of such endorsements.
However, it shall not include a person who purchases goods for resale or any other commercial purposes. For ensuring consumer safety & the protection of their interests, the Act ensures free and fair-trade practices to be followed in the market to eliminate malpractices and consumer exploitation by businesses and sellers in the market who may or may not have any knowledge regarding their rights and remedies provided under the law. Thus, there are six basic rights provided under the Act that include-
i. Right to Protection against misleading marketing of defected goods or deficient services which may be hazardous to life and property;
ii. Right to Information regarding the quality, quantity, potency, purity, applicable standards, and price of goods, products, or services respectively, to protect the consumer against unfair trade practices;
iii. Right to be assured, wherever possible, access to a variety of goods, products, or services at competitive prices;
iv. Right to be heard against any issues raised by the consumer with an assurance that in every circumstance consumer’s interests will receive due consideration at the appropriate forum;
v. Right to seek Redressal against any unfair trade practices, any manipulative trade practices, or any restrictive trade practices that have been taken place with intent to unscrupulous exploitation of consumers; and
vi. Right to consumer awareness;
What is a Consumer Redressal Forum?
As provided above, it is one of the basic rights of a consumer to be heard and to seek redressal for any defect suffered in any goods/services. Thus, for addressing consumer disputes and grievances, the Act allows the establishment of consumer redressal forums under three levels namely-District Forum, State, and National Redressal Forum which apply to each consumer based on their territorial and pecuniary jurisdiction. The National Consumer Disputes Redressal Commission is located in New Delhi and it is at the top of the hierarchy of all consumer forums.
It is important to note that a legal notice should be prepared and saved with utmost caution as it could be presented as a piece of evidence in a court of law. Further, in cases where the seller/respondent denies to reply to the notice or take appropriate action within the requisite period, it gives the consumer/plaintiff a suitable ground to seek the matter to the consumer forum and file a complaint. Now, before moving on to the procedural parts of drafting a legal notice, it is important to understand who can file a consumer case, under what circumstances the case could be filed, and how to assess the appropriate forum for seeking a case under the Act.
Who can file a consumer disputes case?
A complaint can be filed a complaint before any designated authority as specified under the Act by-
i. A consumer who has purchased goods or availed services for consideration for either his consumption or for the consumption of his friends or family but not for resale purposes;
ii. A registered consumer association under the Act;
iii. The Central Government or any State Government of India;
iv. Two or more consumers having common interests filling a case jointly;
v. Legal heir or representative of the consumer, in case of death; and
vi. Where the consumer is a juvenile, his parents, or legal guardian.
When should a consumer file a complaint to the Redressal Forum?
A consumer under the Act may file a complaint before the redressal agency in case of the following situations-
i. A seller who has sold his goods or provided services has failed to afford the quality and standards in the goods sold or services so provided; and
ii. Buyer/Consumer feels unhappy/cheated and dissatisfied from the use of such goods or services so availed from the consumer.
How to decide upon the jurisdiction of the Redressal Forum to be approached?
The Consumer Protection Act 2019 has introduced certain changes related to the appropriate jurisdiction to file a complaint against any seller under the Act. Accordingly, a consumer may file a complaint to the forum nearest located at his convenience either from his place of work or his place of residence, and the complaint could be filed by the consumer electronically from any place of his convenience. Furthermore, the Act provides for two types of jurisdictions namely-
i. Territorial Jurisdiction
For territorial jurisdiction, the Act provides for three-level consumer redressal forums namely- at the District level, the State level, and the National level. While a District Level Forum entertains complaints within its geographical limits, a State Redressal Forum hears appeals from all the district forums within the states. Whereas, the National Commission has the territorial jurisdiction to entertain appeals from all the state commissions located all over the country.
ii. Pecuniary Jurisdiction
Additionally, there are pecuniary jurisdictional limits of each Consumer Redressal forum that have been amended under the provisions of the Consumer Protection Act, 2019 as provided below-
- A District Consumer Disputes Resolution Forum can hear and entertain cases where the value of goods or services is either equal to or lesser than ₹1 crore.
- The State Consumer Disputes Resolution Commission can entertain disputes where such value is between ₹1 crore and below ₹10 crores.
- The National Commission Disputes Resolution Commission can accept complaints and entertain them where the value of goods/services or both is above ₹10 crores.
Can a consumer aggrieved from the decision of the Redressal forum may file an Appeal or revision?
Yes, a consumer aggrieved by the order of the District Consumer Forum may appeal to the State Commission or from State Commission to National Commission, or from National Commission to the Supreme Court of India, which could be appealed within thirty days from the date of passing of the previous order. Also, the Consumer Dispute Forums have been empowered by the Act to consider revision of their orders.
How to draft and serve a legal notice to the respondent seller under the Act?
However before lodging a complaint before the Consumer redressal Forum it is important to send 15 days’ advance notice to the consumer to the respective seller/respondent. Since the legal notice is intended to communicate the issues between the parties, it must ideally include the grievance of the consumer along with the remedy sought through the notice.
Therefore, the following should be the particulars of the Legal Notice under the Act-
i. A statement concern manifesting your issue and the timeline of the encounter and the defect/deficiency in goods/services so purchased/procured from such seller.
ii. A clear mention of the expenses incurred or any loss or suffering due to the faulty good or service, or expenses incurred in the remedy of such defect in such products/service.
iii. A fact is that the sales made by the seller were for consideration and not for a fee which could be evidenced from the invoice or receipt number issued by the concerned seller, that will also help in the identification of the goods or services availed.
iv. A statement under which the consumer intends to give a choice to the seller to make the defect good along with a valid compensation for-
- Removal of the defect in the good/s; or
- Exchange of the goods with newer ones;
- Accepting product returns with a refund of the consideration;
- A Compensation for the injury/loss/expenses incurred to the defect/deficiency in the products.
v. Lastly, the consumer must highlight the fact that in case the seller fails to respond to the notice promptly (within the prescribed timeframe between 15 to 30 days) or appropriately, the consumer will take a legal recourse either through a civil/criminal court or with a consumer redressal forum with appropriate jurisdiction.
vi. Such legal notice could either be sent in a typed letter through a speed post or by registered courier services at their usual place of work or profession. However, after the amendment in the Act 2019, the consumer could also send e- notices through e-mail or WhatsApp.
What are the things to be considered while sending a legal notice to the seller?
As serving a legal notice to the seller is the first step towards resolving a consumer dispute, it should be saved carefully as it could be helpful as a piece of evidence for claims later in the consumer forum/ court of law. Some of the things to be considered while sending a legal notice under the Consumer Protection Act 2019-
i. It is necessary to keep all the invoices with all their attachments and other details like invoice numbers, warranty cards, guarantees, advertisement copy, etc. safely as they could be useful as evidence.
ii. The mode of payment of consideration to the seller is required to be mentioned and to keep the proof of payment for which it is advisable to have electronic transactions for evidencing the payment.
iii. Where the service provider/manufacturer/seller owns an online platform for handling consumer grievances, it is advisable to make an online complaint and save the details such as the complaint reference number, email, and the response received from the same.
iv. If the consumer has incurred costs on repairing the damaged/defective goods, he should maintain proof for all such costs which will hold importance in the case.
v. Though there is no compulsory mode of serving notices upon the respondent under the Act, it should be preferred as they could provide proof of receipt of the notice by the respondent.
vi. Where the notice is being delivered personally to the respondent, there must be an Acknowledgment of receipt of notice from either the seller or his affiliates.
vii. The limitation period to file a complaint before the Consumer Forum is two years from the date on which the cause of action first arose (when the defect in the goods/services was discovered). Therefore, in case the consumer intends to bring a cause of action against the seller, he shall act cautiously and swiftly in the matter without any inordinate delay.
Conclusion
India is one of the largest producers and consumer markets in the world still faces a lot of problems regarding market manipulation and unfair trade practices against the consumers who despite a substantial legislative framework in place fail to get appropriate relief in time.
Therefore, consumers must remain conscious, informed, and aware of the money they choose to invest in the goods or services in the market. And, in case of injustice or any consumer exploitation by the sellers in the marketplace, they may act prudently by leveraging the legal notice and sending it to the seller in the manner described above.
