Justice Delivery to Consumers – Dream or Reality

Dr. B.C Gupta

The justice delivery system should implement procedures to ensure speedy redressal to aggrieved consumers

Depositphotos_51471537_s-2015

The United Nations Guidelines for Consumer Protection (UNGCP) adopted by the General Assembly through resolution 70/186 of 22.12.2015 have called upon the Member States to develop fair, effective, transparent and impartial mechanisms to address consumer complaints through administrative, judicial and alternative dispute resolution (ADR) methods. The Member States are required to establish/maintain procedures that are expeditious, inexpensive and accessible, so as to take care of the needs of vulnerable and disadvantaged consumers.

The General Assembly first adopted the UN Guidelines for Consumer Protection (UNGCP) on 09.4.1985 through resolution 39/248, which were later expanded by the Economic and Social Council through the resolution of 26.07.1999. It was provided, interalia, that the procedures to redress the grievances of the consumers should take particular account of the needs of the low-income consumers.

The Consumer Protection Act 1986 (Act No. 68 of 1986) was promulgated in India w.e.f. 15.04.1987, following the adoption of the UNGCP in the year 1985 by the General Assembly. It provides for a three-tier structure for consumer disputes redressal in the shape of Consumer Fora/Commissions at the District, State and National levels, consisting of judicial as well as non-judicial members. The mechanism is fully operational in most parts of the country, but it is a matter of common knowledge that the traditional methodology followed by these Consumer Fora/Commissions involves painful, long drawn-out litigation between the consumers and the resourceful suppliers of goods or service providers, which is time-consuming and expensive. The provisions like appeal, review, revision etc. in this multi-tier system of dispute redressal, do not allow the proceedings to attain finality. Even after the final word is said, the execution/implementation of the Award involves fresh proceedings by itself. It is felt that most consumers having low financial stakes do not come forward to seek redressal of their genuine complaints/grievances.

A cursory glance at the cases pending before the National Commission indicates that in most revision petitions and appeals, the original consumer complaint was filed as many as 10 to 15 years back or more. Further, it is alarming to observe that in most District Consumer Fora situated away from major urban agglomerations of the country, only a few cases, just 100 or so, are pending disposal, although huge public expenditure is involved in meeting the cost of their establishment alone. This factor lends credence to the theory that most of the low-income consumers do not approach these Fora at all, due to heavy cost/time involved in litigation.

The term Alternative Dispute Resolution (ADR) as referred in the United Nations Guidelines basically involves settlement of disputes outside the Court by adopting means like arbitration, conciliation, mediation, judicial settlement etc. The basic objective of the ADR is to ensure speedy, fair, transparent and inexpensive disposal of disputes. In India, a well-defined statutory mechanism has already been laid down for the ADR in the shape of section 89 of the Code of Civil Procedure and the Legal Services Authorities Act, 1987.

In the Code of Civil Procedure 1908 (Act 5 of 1908), Section 89 was inserted by the Amendment Act 46 of 1999, following the recommendations of the Malimath Committee. This provision was made operational from 1.7.2002 and states as follows:

“89. Settlement of disputes outside the Court.– 

(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for—

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation. “

Legal Services Authorities Act, 1987 (Act No. 39 of 1987)

The Legal Services Authorities Act, 1987 made operational through a  notification in the year 1995, lays down that Lok Adalats (People’s Courts) consisting of serving or retired Judicial Officers and other persons including social workers and representatives of women shall be organized from time to time.  Cases pending before the courts or likely to be brought before a court may be referred by the court to the Lok Adalats which shall proceed to dispose of the same by attempting a compromise or settlement between the parties by following the principles of justice, equity and fairplay. The Award of the Lok Adalats as per section 21 of the Act is deemed to be a decree of the Civil Court and it is non-appealable and binding on the parties to the dispute.

The legality and correctness of the mechanism provided under section 89 of the Civil Procedure Code, has been the subject of challenge before the Hon’ble Supreme Court of India in many writ petitions.  In their judgments passed by the three-member Bench of the Apex Court on two different occasions, the use of section 89 has been held to be mandatory.  Such judgments were passed in “Salem Advocates Bar Association vs. Union of India [(2003) 1 SCC 49]” and then again in “Salem Advocates Bar Association vs. Union of India [(2005) 6 SCC 344].”  In their landmark judgment passed in “Afcons Infrastructure Ltd. & Anr. Vs. Cherian Varkey Construction Co. (P) Ltd. & Ors. [2010 (8) SCC 24]”, the Hon’ble Supreme Court held that “to consider recourse to ADR process is mandatory”, in the following types of cases:-

 

Cases normally suitable for ADR Processes:

…..

  1. All Consumer Disputes Including disputes where a trader supplier / manufacturers/service provider is keen to maintain his business/professional reputation and credibility or ‘product popularity’”

The Hon’ble Supreme Court recently passed a judgment on 30.08.2017 in “Bijoy Sinha Roy (d) by LR. Vs. Biswanath Das  & Ors.” [Civil Appeal No. 4761-63/2009 decided on 30.08.2017], which was a case of medical negligence finalized after litigation of 23 years.  The Hon’ble Supreme Court held as follows:-

“16.     Before parting with this order, it is necessary to refer to another important aspect relating to administration of justice by the Consumer Fora. A person coming to a consumer Court with a grievance of deficiency in service needs immediate relief. The very object of setting up Consumer Fora was to provide speedy remedy to a consumer.  The Consumer Protection Act, 1986 (the Act) was brought about in the background of world-wide movement for consumer protection.  Framework of the Act is based on Resolution dated 9th April, 1985 of the General Assembly of the UN to which India was a signatory.  The Act provided for protection of interests of consumers in the form of quick and speedy redressal of grievances.  The provisions of the Act are in addition to and not in derogation of any other law.  Thus, the Act provides for additional remedies.  The authorities under the Act exercise quasi-judicial powers. The award of damages is aimed at bringing about qualitative change in the attitude of service provider.

………………………………………………………..

  1. The other aspect relates to use of ADR. By Act 46 of 1999, Section 89 has been added to CPC laying down mechanism for settlement of disputes outside the Court. Even though strictly speaking, the said provision is applicable only to civil courts, there is no reason to exclude its applicability to Consumer Fora having regard to the object of the said provision and the object of the consumer protection law.  Accordingly, we are of the view that the said provision ought to be duly invoked by the Consumer Fora. We request the National Commission to issue appropriate directions in this regard.”

 

It is adequately made out from above that statutory legal provisions do exist in India for ADR as envisaged under the revised UN Guidelines for meeting the objective of a fair, transparent, speedy, inexpensive Consumer Dispute Redressal. The Supreme Court of India have also directed from time to time that the mechanism for Consumer Dispute Redressal must make use of these provisions, especially in cases involving low financial stakes.

As far back as in February 2005, this Author made a presentation on the implementation plan for the ADR before the National Commission, strictly based on the legal provisions contained in section 89 of the Code of Civil Procedure and the Legal Services Authorities Act 1987. The President of the National Commission issued a directive in August 2005, saying explicitly that Lok Adalats should be organized on the last working day of each week by the District Fora/State Commissions. It was also directed that 20-25 cases should be set apart for that purpose and eminent persons from the public should be invited to participate in the settlement proceedings. It is not understood, however, as to why there has never been any conscious attempt on the part of the National Commission or State Commissions to give effect to the directions issued by the President of the National Commission in 2005. These Commissions have failed to get over the traditional mind-set and have been working like regular Civil Courts only, leading to huge delays in disposal of very simple cases also. The net result is quite obvious that most of the Consumers, especially those involving low financial stakes cannot afford to knock at the doors of the Consumer Fora.

A glaring illustration of the current scenario is as below:

  1. This author was invited by the National Law School of India University Bangalore to deliver a lecture on “Consumer Law and Practice” to the students of the second semester on 2nd November, 2018. An Ola cab was hired on the morning of 2nd November, 2018 by this author to travel from the Hotel to the Law School Campus. It was observed on the way that the driver of the cab indulged in rash/careless driving and was talking loudly on his mobile to one of his friends throughout the journey of 20-25 minutes. Obviously, there was a ‘deficiency of service’ on the part of the service provider. However, this author, who lives in Chandigarh, could not muster strength to file a consumer complaint as this would have involved hiring the services of an advocate, preparing the paper book and filing the case before a District Forum at Bangalore, and then to wait for hearing, which could be many months away. The financial stakes being small, it was considered wise to overlook the matter.
  2. A male student of class X who cleared the examination conducted by the Central Board of Secondary Education (CBSE) received the usual certificate, but inadvertently, the photograph printed on the certificate was that of a ‘girl’. That District Forum and the State Commission refused to grant relief to the student, based on certain technicalities alone. When the revision petition came up for hearing before the National Commission, one of the members on the Bench asked the CBSE the reasons for not giving correct certificate to the student. At the instance of the Bench, the CBSE agreed to provide the correct certificate, although by that time, a time of 6-7 years had already passed. The District Forum could have directed the CBSE to provide the correct certificate on the first date of hearing itself.

 

The above examples vividly show that there is a huge need on the part of the Consumer Fora/Commissions to take note of the reality of the situation and ensure that Consumer complaints are settled by following procedures which do not consume much time, effort and money. The point was emphasized at the Regional Conference on Consumer Protection, “Empowering Consumers in new markets” held in New Delhi by the UNCTAD in October 2017, to take stock of the implementation of the revised UN Guidelines, in which about 20 different countries of the Region participated. It was pleaded by this author that the justice delivery system to take care of the Consumer Grievances etc. should adopt methods/procedures aimed at providing immediate relief to the helpless consumers so that the powerful service providers/business class were not able to exploit them in any manner.

In this age of e-Commerce and Digital World, the importance and necessity of using the ADR methods can hardly be over-emphasized. The Consumers International (C.I.), a global Federation of about 250 consumer groups associated with the United Nations, had declared the year 2018 as the year of E-Commerce.  The theme for the year 2017 was ‘Better Digital World’. In the United Kingdom, a new legislation called the Consumer Rights Act, 2015 has been promulgated with effect from 01.10.2015.  It includes ‘Digital Content’ as the third major category in addition to ‘Goods’ and ‘Services’. The matter requires being deliberated seriously in this country as well.

The Online Dispute Resolution (ODR) is another important tool for speedy disposal of the consumer issues. A beginning has already been made by setting-up an Online Mediation Centre at the National Law School of India University, Bangalore.

It is high time; therefore, that the Administrative and Judicial Authorities/Institutions entrusted with the task of Consumer Disputes Redressal, should take stock of the situation, join hands and put into practice the ADR Mechanism for achieving the objectives of speedy and inexpensive Consumer Disputes Resolution. Let the consumer justice delivery be a reality, rather than a distant dream only.



Dr. B.C. Gupta is an ex-Member of the National Consumer Disputes Redressal Commission, New Delhi.


 

References:

  1. UN General Assembly Resolution on Consumer Protection: A/RES/70/186 dated 22 December, 2015
  2. UN General Assembly Resolution on Consumer Protection: 39/248(1985) dated 9 April, 1985
  3. Economic and Social Council Resolution E/1999/INF/2/Add.2 of 26 July, 1999
  4. Consumer International, https://www.consumerinternational.org
  5. Consumer Rights Act 2015, UK, legislation.gov.uk

Image Credits: Rtrattorneys

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