Table of Contents
- Who is a consumer?
- Consumers rights guaranteed under Consumer Protection Act, 2019
- Consumer Disputes Redressal Agencies
- What is an unfair contract?
- Pecuniary and territorial jurisdiction of commissions
- Does a consumer need an advocate to represent his case in the Commission?
- How to file a complaint before consumer courts?
- What details a consumer has to provide in his complaint?
- What happens if the consumer isn’t satisfied with the consumer commission’s order?
- Fee to be paid to for filing consumer complaint
- What is the penalty for misleading advertisements under the consumer act?
- Consumer courts versus RERA
- Home buyers and NCLT
Amid a remarkable change in the way products and services are marketed, sold and delivered in an ecosystem that relies heavily on technology, India repealed its three-decade old consumer protection law to launch an advanced version in 2019.
With the initiation of the Consumer Protection Act, 2019, the earlier version of the law, the Consumer Protection Act, 1986, stands repealed.
While retaining certain provisions from the previous law, the 2019 Act introduced new provisions that tighten the existing rules to offer a better degree of protection to consumers. The new provisions under the Consumer Protection Act, 2019 include:
*Inclusion of e- commerce, direct selling
*Establishment of Central Consumer Protection Authority (CCPA)
*Strict norms for misleading advertisement
*Strict norms for product liability
*Changes in the pecuniary jurisdiction
*Greater ease to dispute resolution
*Addition in the clause of unfair trade practice
*Alternate dispute resolution through mediation
Explained in this article are the crucial provisions of the consumer protection act and how the law guards the customers interests including homebuyers against dominant market forces.
Who is a consumer?
Section 2(7) of the 2019 Act explains who is a consumer in the eyes of the law.
“A person who buys any goods or services for a consideration, which has been paid or promised or partly paid and partly promised, or under any system of deferred payment also includes the user with approval of such goods or beneficiary of services. Under the Act, the expression “buys any goods” and “hires or avails any services” includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing.
The Act also defines people who don’t qualify to be consumers. These include:
*People who obtains goods free of charge
*People who avail of services free of charge
*People who obtain goods for resale or for any commercial purposes
*People who avail of services for any commercial purposes
*People who avail of services under contract of service
Consumers rights guaranteed under Consumer Protection Act, 2019
Consumers have the following six consumer rights under the Act:
- Right to safety
- Right to be informed
- Right to choose
- Right to be heard
- Right to seek redressal
- Right to consumer awareness
Consumer Disputes Redressal Agencies
There is a three-tier system to offer refile to consumers under the 2019 law:
*The District Consumer Disputes Redressal Commission or DCDRCs (district commission)
*The State Consumer Disputes Redressal Commission or SCDRCs (state Commission)
*The National Consumer Disputes Redressal Commission or NCDRC (national Commission)
What is an unfair contract?
The 2019 Act has also introduced the concept of unfair contract and defines it in Section 2(46). An unfair contract is one whose terms brings about a significant change in the consumer rights under the Act. These terms may include:
*Requirement of excessive security deposits by the consumer for facilitating the performance of obligations under the contract
*Imposing penalty for breach of contract on the consumer which isn’t in proportion with the loss suffered due to such breach
*Unwillingness to accept early debt repayment along with the applicable penalty
*Allowing one of the parties to terminate the contract without any reasonable cause or unilaterally
*Entitling one party to assign the contract to the detriment of the consumer and without his consent
*Imposing unreasonable condition, obligation or charge on the consumer that puts him in a disadvantageous position
Pecuniary and territorial jurisdiction of commissions
Under the 2019 act, consumer disputes redressal commissions (CDRCs) will be set up at the district, state and national levels where consumers can seek relief against any wrongdoings.
Since there is a three-tier system, the law established a pecuniary mechanism to divide the jurisdiction of the commissions.
At the district-level commissions, a consumer can file complaints where the value involved is up to Rs 1 crore.
At the state -level commissions, a consumer can file complaints where the value involved is between Rs 1 crore and Rs 10 crore.
At the nation-level commissions, a consumer can file complaints where the value involved is over Rs 10 crore.
Note here that complaints against an unfair contract can be filed with only the state and national commissions.
Also note that appeals from a district CDRC will be heard by the state CDRC while appeals from the state CDRC will be heard by the national CDRC. The final appeal will lie before the Supreme Court (SC).
Also, the 2019 act gives the consumer the freedom to file a complaint where he resides or works. The earlier law allowed consumers to file a complaint where the opposite party carried out its business or resides.
What is the time limit for filing the complaint?
Under the law, a complaint has to be filed within two years from the date on which the cause of action has arisen. This would mean two years from the day the deficiency in service or defect in goods has arisen/is detected. This is also known as the limitation period for filing the complaint.
Does a consumer need an advocate to represent his case in the Commission?
Since consumer commissions are quasi-judicial bodies, established to provide quick relief, the consumer doesn’t need to involve a lawyer. He is free to file complaints on his own and represent himself during the hearing too. That said, a consumer is free to hire the services of a legal advisor if he wishes so.
How to file a complaint before consumer courts?
A consumer has to file his complaint in writing in an offline or online mode. To file the complaint online, the consumer can visit, www.edaakhil.nic.in .A complaint can also be presented by the complainant in person or by his agent. It can even be sent by registered post along with the court fee. Normally, three copies of the complaint are required to be submitted.
What details a consumer has to provide in his complaint?
In his complaint, a consumer has to mention:
*His name, description and address
*The name, description and address of the party against whom the complaint is being filed
*Time, place and other facts relating the complaint
*Documents support to back the allegations
What happens if the consumer isn’t satisfied with the consumer commission’s order?
Consumers, who aren’t satisfied with the order of a commission can appeal against its order in the higher commission within a period of 30 days from the date of the order. Consumers not happy with the decision of the apex consumer court can approach the SC within 45 days of the order by the national commission.
Fee to be paid to for filing consumer complaint
Consumers have to pay a minimum fee to proceed with the complaint. The charges vary depending on the consideration involved.
|Commission/Value of the product services||Fee|
|Up to Rs 5 lakh||None|
|From Rs 5 lakh to Rs 10 lakh||Rs 200|
|From Rs 10 lakh to Rs 20 lakh||Rs 400|
|From Rs 20 lakh to Rs 50 lakh||Rs 1,000|
|From Rs 50 lakh to Rs 1 crore||Rs 2,000|
|From Rs 1 crore to Rs 2 crore||Rs 2,500|
|From Rs 2 crore to Rs 4 crore||Rs 3,000|
|From Rs 4 crore to Rs 6 crore||Rs 4,000|
|From Rs 6 crore to Rs 8 crore||Rs 5,000|
|From Rs 8 crore to Rs 10 crore||Rs 6,000|
|Over Rs 10 crore||Rs 7,500|
The fee has to be paid as demand draft or through a crossed postal order drawn in favour of the Registrar of the state commission.
In case the parties decide to settle a dispute through mediation with the help of the consumer forum, they won’t be charged any fee.
What is the penalty for misleading advertisements under the consumer act?
The Central Consumer Protection Authority (CCPA), which has been established as the apex body under the act to promote, protect and enforce the rights of consumers, can impose a penalty on a manufacturer or an endorser of up to Rs 10 lakh and imprisonment for up to two years for a false or misleading advertisement. The penalty may extend to Rs 50 lakh and imprisonment of up to five years in case of subsequent offences.
Consumer courts and homebuyers
Consumer courts versus RERA
With the establishment of the state Real Estate Regulatory Authorities under the Real Estate (Regulation & Development), Act, 2016, homebuyers now have a specific forum to approach in case of any issues with developers. That, however, doesn’t mean homebuyers can’t approach the consumer courts to seek relief. This is because the 2019 law included developers under its definition of “product sellers” who could be taken to consumer courts over defaults. A product seller includes a person who is engaged in the sale of constructed houses or in the construction of homes or flats.
In 2020, the SC reiterated this while entertaining a bunch of complaints against Delhi-based Imperia Structures.
“On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the (consumer) commission or forum under the provisions of the Consumer Protection Act to entertain any complaint. The parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act,” the SC said.
It also added that the RERA didn’t statutorily force a person to withdraw any such complaint nor did the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act.
However, homebuyers must note that Section 79 of the real estate law provides that civil courts don’t have the jurisdiction over matters which are to be decided under the RERA. This means while a homebuyer is free to approach consumer courts, they can file a civil suit against the builder.
Home buyers and NCLT
This also brings us to the question, can homebuyers approach the insolvency tribunals to initiate insolvency proceedings against a builder? The answer is they can, if they fulfill certain conditions.
This was made possible after the top court in August 2019 upheld the amendment made in the Insolvency and Bankruptcy Code that grants buyers the status of a financial creditor. However, in another order passed in January 2021, the SC has also added that at least 10 per cent of total buyers in a housing project are required to initiate insolvency proceedings against a defaulting developer under the Insolvency and Bankruptcy Code (IBC), 2020. The amendments had mandated that a minimum of 100 homebuyers should come together to file an insolvency application in the National Company Law Tribunal (NCLT) against a defaulting developer.
“If a single allottee, as a financial creditor, is allowed to move an application, the interests of all the other allottees may be put in peril. Some of them may approach the Authority under the RERA. Others may, instead, resort to the Fora under the Consumer Protection Act, though, the remedy of a civil suit is, no doubt, not ruled out,” the SC said in a 465-page order upholding the Constitutional validity of the amendments made to the insolvency code.
When was the Consumer Protection Act, 2019 enacted?
The Consumer Protection Act, 2019, was notified on August 9, 2019. However, it came into force on July 20, 2020.
Can a consumer complaint be resolved through mediation?
Parties at any stage of the complaint can opt for settlement through mediation.
Can a person buying goods or hiring services for business purposes make a complaint in consumer courts?
People buying goods or hiring services for business purposes can’t make a complaint in consumer courts.