9th Part
Q. Discuss in detail the remedies available for negligence in ‘Banking Service’.
A. The bankers are professionals, who undertake to pay on consumer's cheques to the extent of money in their credit balance. The failure to do so constitutes negligence and makes them liable for damages including for injury to the credit of the consumer. The banks are liable for any forgery in the cheque committed by third persons. A bank which makes a payment on a forged cheque, cannot make the customer liable except on the ground of negligence imputable to the consumer. If the signatures of the customer on the cheque are not genuine, there is no mandate on the bank to pay. In such a case, the question of any negligence on the part of the customer, such as leaving off the cheque-book carelessly so that a third party can easily get hold of it, can afford no defense to the bank. Similarly, if a bank fails to carry out the instructions of a customer, it will be liable for negligence. For example, if a bank issues a bank draft without authority in accordance with the customer's instructions against valid cheques of the customer, owing to the fraud of the customer's servant, the bank will be liable for damages in respect thereof.
There are two laws enacted to safeguard the interests of customers of banking services they are -
1) The Usurious Loans Act, 1918 -
It empowers the courts on the lines of Section 1 of the Money Lenders Act, 1900 to reopen transactions by way of money or loans in cases where the Court is satisfied (1) that the interest or other return is excessive and (2) that the transaction is substantially unfair, and after investigation of the circumstances, both attendant and antecedent, to revise the transactions between the parties and if necessary, reduce the amount payable to such sum as the Court, having regard to the risk and all the circumstances of the case, may decide to be reasonable. Section 3 of the Act provides for the re-opening of certain transactions.
2) The Banking Ombudsman scheme, 1995 -
The object of the scheme is to enable resolution of complaints relating to the provision of banking services and to facilitate the satisfaction, or settlement of such complaints. Under this scheme, the Reserve Bank of India has to appoint one or more persons to be known as the Banking Ombudsman to carry out the functions entrusted to him by or under the Scheme.
Procedure for redressal of grievance: Clause 16 of the Scheme provides that any person having a grievance against a bank, may himself or through an authorized representative make a complaint in writing to the Banking Ombudsman within whose jurisdiction on the branch or office of the bank complained against is located.
No complaint to the Banking Ombudsman shall lie unless -
a) The complainant had before making a complaint to the Banking Ombudsman made a written representation to the bank named in the complaint and either the bank had rejected the complaint or the complainant had not received any reply within a period of two months after the bank concerned received his representation or the complainant is not satisfied with the reply given to him by the Bank.
b) The complaint is made not later than one year after the bank had rejected the representation or sent its final reply on the representation of the complainant.
c) The complaint is not in respect of the same subject matter which was settled through the office of the Banking Ombudsman in any previous proceedings whether received from the same complainant or any one or more of the parties concerned with the same subject
matter.
d) The complaint is not the same subject matter, for which any proceedings before any court, tribunal or arbitrator or any other forum are pending or a decree or award or order of dismissal had already been passed by any such court, tribunal, arbitrator or forum.
e) The complaint is not frivolous or vexatious in nature.
Under Clause 17 of the Scheme, the Banking Ombudsman may require the Bank to provide any information or furnish certified copies of any document related to the subject matter of the complaint which is or is alleged to be in its possession.
Under clause 18 of the Scheme, the Banking Ombudsman is under a duty to promote a settlement by agreement between the complaint & the bank through conciliation or mediation. For this purpose, the Banking Ombudsman may follow such procedure as he may consider appropriate and is not bound by any rule of evidence.
Recommendation for settlement:- If a complaint is not settled by agreement within a period of one month from the date of receipt of the complaint or such further period as the Banking Ombudsman may consider necessary, under Clause 19 of the Scheme, he may make a recommendation to what is, in his opinion, fair in all circumstances. Such recommendation is binding upon the complainant if he accepts all terms of recommendation in full and final settlement of the complaint. The recommendations so accepted by the complainant shall be binding on the bank, if acceptable to it.
Award by the Banking Ombudsman - Where the complaint is not settled by agreement or recommendations, the Banking Ombudsman, under Clause 20 of the Scheme, shall inform the parties of his intention to pass an Award. The parties may submit any further representation or evidence in support of their claim. The Banking Ombudsman shall pass an Award after allowing the parties reasonable time and chance to present their case.
Q. Discuss in detail various ‘Activities of an Organisation’ dealing with Consumer Problems and issues.
A. The various ‘Activities of an Organisation’ dealing with Consumer Problems & issues are -
# Education - The main objectives of consumer education are :
- develop skills
- gain knowledge, and
- develop understanding
Consumer education should focus on specific issues like health, sanitation, nutrition, food and product safety, pharmaceuticals, basic needs, environmental problems, market malpractices, finance, workers' rights, unethical advertisement practices, culture, and lifestyles, etc. Consumer education should be provided to all sections of people including school & college students, teachers, women, and youth groups, religious organizations, and masses in general. This can be imparted through seminars, workshops, exhibitions, drama, and competitions on consumer issues. Consumer education can also be imparted through electronic media like film shows, radio, tv, and campaigns. The organization can also organize exhibitions of books and magazines. CPA itself provides for consumer education. Consumer education helps in making an alert and awake citizen who behaves responsibly at the market place, enquires about the quality of goods.
# Research -
Many of the consumer problems can be solved by conducting research studies and surveys. Initially, the organization should carry out research to find out what kind of consumer education is required in society and to what level and to what extent. The research can be carried out in all the areas under consumer education. Research also needs to be carried out in the market place regarding business malpractices and tests performed to check the safety and quality of consumer products such as water and foodstuffs. The results of these tests can also be published in-the organization's magazine or newsletter.
# Grievances and Complaints -
The consumers generally have a lot of complaints related to consumer issues like poor quality of products & services, food adulteration, unhygienic conditions, water & electric supply, etc. These complaints may be received through the mail, telephone, or in person. Proper guidance should be provided so that the grievance of consumers are redressed.
# Vigilance
In India, many services like postal services, telephone, electricity, water supply, and the public distribution system are managed by governmental agencies. Unfortunately, most of these services aren’t performed to the satisfaction of the consumers. Hence, some of the volunteers of an organization, especially the younger group, can form a vigilance group to keep an eye on these services. For example, if a ration shop receives its stock for distribution to the ration cardholders, the members of the vigilance group can take the responsibility for delivery of the goods to the holders, without any harassment. Similarly, these members can also oversee the staff responsible for the cleanliness of roads, streets, etc. do their work properly.
# Counselling
A few members of an organization who are well versed with the legal provisions can help train, educate, and guide individual consumers so that these individuals can represent themselves in grievance redressal forums effectively. Thus they can provide assistance and legal advice to consumers who are in need of such advice. In addition, they can observe the implementation of the laws enacted by the local government which affects the consumers. Such people can also file PIL in courts on consumer-related issues.
# Publications and Media
Consumer organizations can bring out the appropriate publications, such as manuals and magazines, pamphlets and leaflets in local languages. It can highlight various aspects of consumer protection in different areas, with reference to the law, rules, regulations, and procedures. It can educate consumers regarding rights and responsibilities.
They can also organize workshops, seminars, and training programs not only on consumer-related topics but also in building up the capacities and developing skills of individual consumers. This will enable them to take a more effective part in the consumer movement.
# Library
An organization can also become a good information center if it maintains a library. A wide range of books, journals, research reports, and pamphlets along with press clippings can be kept in the library for the reference needs of the consumer. The library premises can also be used occasionally as a meeting point for the members of the organization. A library is an ideal place for the display of charts, posters, etc. Notices for the members can also be put up on the notice board in the library for their information.
Q. Discuss the Limitations of the Consumer Protection Act, 1986, and difficulties faced in its implementation.
A. Some of the Limitations of the Consumer Protection Act, 1986 are -
i) Only those services come within this Act for which specific payment is made, such as electricity, telephones, banking, etc. Government hospitals do not come within the ambit of the Act. Also, the mandatory civil services, such as sanitation, water supply, etc. provided by the State or local authorities are not covered by the Act.
ii) The Consumer Protection (Amendment) Act, 1993 incorporated two clauses regarding the supply of hazardous goods, but it does not impose strict liability on those who supply such goods.
iii) The Act does not give any definition of safety requirements and permitted hazard levels.
iv) Under the Act, a consumer can seek redressal only he has suffered a loss on damage as a result of the unfair trade practice or deficiency in service or the unfair trade practices resorted to by a trader. However, the per se rule is not invoked. The per se rule ensures that any act or practice which prima facie appears to be unfair shall be regarded as unfair and against consumer interest as such, pending its justifications by the opposite party.
v) The Act does not empower the Consumer Redressal Forums to take up cases suo moto.
vi) The Act does not empower the Consumer Redressal Fora to issue either interim injunction or "cease and desist orders".
vii) The Act does not empower consumer fora to publish the names of manufacturers, traders, and dealers whose goods are found to be hazardous to public safety.
viii) The Act does not permit a consumer to lodge a complaint with the Consumer Fora if an alternative remedy is available under some other law.
ix) The Act does not impose liability on the chief executive, manager, or director where an offense is shown to have been committed by an organization.
x) The Act specifies a time frame within which the dispute is to be disposed of. The period specified is 90 days, but the actual time taken is much longer.
xi) The Act completely ignores the right of consumers to a healthy environment.
xii) The Act is silent on the question of storage of commodities.
xiii) The Act concedes six rights of consumers viz. right to choice; right to safety; right to be informed; right to be heard; right to redress; and right to consumer education. But these rights have not been made justiciable.
xiv) The Consumer redressal agencies do not have the requisite infrastructure; as a result, they are hamstrung functioning effectively.
xv) An important issue relating to the execution of the orders is that the consumer courts have to depend on the Civil Courts for the execution of the orders or on the Criminal Courts when cases are referred for service of warrants leading to delays.
xvi) There is a rift between the judicial and non-judicial members of the consumer courts. This is growing day by day & threatening of effect the functioning of these quasi-judicial bodies.
Q. Discuss the important provisions of the Drugs and Cosmetics Act, 1940.
A. The provisions are setting up -
The Drug Technical Advisory Board
The Board has been set up by the Central Government to advise it & the State Governments of technical matters arising out of the administration of this Act and for carrying out other functions assigned to it by this Act.
Central Drugs Laboratory
This is established by the Central Government under the control of a Director to carry out functions laid down under the Act. Rules provide for the procedure for admission of samples of drugs or cosmetics for analysis or test, forms of reports, fees to be paid, etc.
The Drugs Consultative Committee
This has been constituted by the Central Government as an advisory committee to advise the Central, State Governments and the Board on any matter tending to secure uniformity in the administration of this Act. It has representatives of the Central & State Governments.
A Cosmetic shall be deemed to be misbranded if it contains a color of a label that is not prescribed or bears\a false or misleading statement. A Cosmetic can be spurious for the same reasons as specified for a drug.
The Central Government has the power to prohibit the import of drugs or cosmetics not of standard quality, or which are misbranded, adulterated or spurious or which are imported in violation of the terms of the license, or in which the contents are not disclosed or which has harmful ingredients. Customs officials can detain and seize any drug or cosmetics which were prohibited from being imported. Any person who imports any drug or cosmetic which is prohibited shall be punishable by law.
Manufacture, Sale, and Distribution of Drugs and Cosmetics
No person shall himself or through his agent manufacture for sale, distribute, sell or stock or exhibit or offer for sale drugs & cosmetics which are not of standard quality, or misbranded, adulterated or spurious or in contravention of the provisions of the Act. Both the Central Government & the State Governments can appoint inspectors under the Act. The inspector can inspect premises, take samples, carry out searches, ask for records, or examine them.
Ayurvedic, Siddha and Unani Drugs
Similar but separate provisions have been made in this Act for these drugs. There is a separate Technical Advisory Board, Consultative Committee, and the prohibitions as to manufacture and sale of Ayurvedic, Sidha and Unani drugs which may not be of the requisite standards, quality, or which may be adulterated, misbranded or spurious has been provided for with corresponding penalties for their breach.
Q. Discuss in brief the Consumer Disputes Redressal Agencies created under the Consumer Protection Act, 1986.
A. Consumer Protection Act, 1986 established a three-tier structure for redressal of consumer disputes. The redressal machinery consists of the following agencies, namely -
a) Consumer Disputes Redressal Forum is known as the 'District Forum'
b) Consumer Disputes Redressal Commission is known as the 'State Commission'.
c) National Consumer Disputes Redressal Commission is known as the 'National Commission'.
District Forum - Each District Forum consists of a president and two other members & one of them should be a woman. A president is a person who has been or is qualified to be a District Judge. The two other members are persons of ability, standing & integrity & have adequate knowledge or experience or have shown capacity in dealing with problems relating to economics law, commerce, accountancy, industry, public affairs or administration.
1) The 'District Forum' has jurisdiction to entertain complaints where the value of goods, services, and compensation claimed (if any) does not exceed Rs. five lakhs.
2) A complaint can be filed in the District Forum in whose territorial jurisdiction the opposite party or parties, at the time of instruction of complaint, actually and voluntarily resides, carries on business, has a branch office or personally works for gain.
3) If any of the opposite parties do not voluntarily reside, carry on business, have a branch office, or personally work for gain the District Forum should grant permission or the opposite parties should consent to such an institution.
4) The complaint can also be filed before the District Forum in whose jurisdiction the cause of action, wholly or in part arises.
State Commission
Composition of State Commission
State Commission consists of three members. One of them is the President and one of the members should be a woman. The President of the State Commission is a person who is or has been a judge of the High Court. The two other members are a person of ability, integrity, and standing and have adequate knowledge or experience or have shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration. The Consumer Protection (Amendment) Act, 1993 has provided that no appointment is to be made except after consultation with the Chief Justice of High Court.
The other two members are appointed by the State Government on the recommendation of a Selection Committee consisting of
i) President of State Commission -Chairman
ii) Secretary of the Law Department of the State -Member.
National Commission
The President is appointed by the Central Government after consultation with the Chief Justice of India. The other members are appointed by the Central Government on the recommendation of a Selection Committee consisting of :
a) a person who is the judge of the Supreme Court, nominated by the Chief Justice of India - Member.
b) Secretary of the Department dealing with consumer affairs in the Government of India - Member.
Jurisdiction
The National Commission has jurisdiction to entertain
i) Complaints, where the value of goods, services, and compensation claimed, exceeds Rs.20 lakhs and
ii) Appeals against the orders of any State Commission.
The National Commission can also call for records and pass orders in any consumer dispute which is pending before the State Commission or has been decided by the State Commission where it appears to the National Commission that such State Commission has exercised the jurisdiction vested in it or has acted in its exercise of jurisdiction illegally or with material irregularity.
Q. Discuss the strategies of effective ‘Campaign and Advocacy Programmes’.
A. The Three Basic Techniques Involved in Effective Strategy is -
# Information and publicity
# Soliciting support
# Techniques to influence those people who have the power to bring about the requisite changes, and thereby make the campaign successful.
Information and Publicity
This involves spreading awareness of the campaign and the issues involved in it by:-
1 Using the mass media, press releases, letters to editors, interviews on T.V. and Radio, Cable TV/Cassettes, and other audio/visual aids. -
2. Organising public meetings to be addressed and attended by popular public personalities, celebrities, and other popular figures who are sympathetic to the cause.
3 Organizing the mobile groups to travel widely to create awareness among the people.
4. Involving schools and colleges are considered necessary.
5 Circulation of posters, handbills, pamphlets, banners, stickers, etc. and putting up hoardings.
6 Taking the advice from experts and professionals as well as relevant scientists, etc. In order to add further weight to the campaign.
7 increasing the credibility of the campaign by showcasing the support they have received in the form of publications and declarations from International organizations. such as WHO and other U.N. bodies, as well as national organizations such as the Bureau of Indian Standards, Food Laboratories, etc.
8 Involving the officials and authorities concerned wherever possible in it.
9. Seminars/Workshops/symposium to discuss and debate on such issues.
10 Preparing comprehensive briefing material for Members of Parliament and State Legislatures, Legislative Councils, etc. for effective lobbying with different political organizations and government for the cause.
11 To file Lawsuits & Public Interest Litigation along with wide publicity for such action.
Soliciting Support - They should try to get the support of groups including:-
- the general public
- key groups in society
- groups related to the issue
This can best be achieved by identifying the individuals and groups-
# who are known to be in support of the cause
# who is known to be opposed to the cause
# who are fence-sitters and have not made up their mind.
- It can be in the form of easily readable material like pamphlets, etc. containing all relevant information regarding the issues.
- proper timing in approaching the media or the judiciary or using other tools of advocacy and campaign is very important.
- getting the support of all like-minded individuals, groups, journalists, community leaders, and other activists and make full use of their respective strengths.
Influencing the Powerful -
It involves identifying those who are in a position to change the situation and solve the problems, these includes -
- professional groups
- business communities.
- various decision making authorities at different levels.
- Members of Parliament, MLAs, or other elected representatives.
Q. Write a note on ‘Duties of Consumers as a Corollary to Consumer Right’.
A. Rights and duties are two sides of the same coin. As consumers, we have two types of duties. One, duties which are required for enforcement of our own rights. For instance, for meaningful enforcement of rights to safety and a healthy environment, it is our duty to buy only ISI marked goods, particularly where safety is most important, for example, electronic items, helmet, etc. Two duties toward others. These can be called our social and ecological responsibility. It means that as consumers we should make responsible choices about our purchases and consumption in relation to society and the environment. Pollution, exhaustion of resources and energy, and the proliferation and hazardous wastes are all problems associated with irresponsible consumption.
Q. Discuss in brief the important provisions of ‘Sale of Good Act, 1930’.
A. The Sale of Goods Act deals with the contracts of sale of goods. The Act was enacted to define and amend the law relating to the sale of goods. Section 14 to 17 of the Act has been designed to protect the interests of the buyers in terms of granting them the remedy of avoiding the transaction, besides the claim for damages, in case certain conditions are not satisfied. Sec. 14(b) & 14(c) contain provisions whereby a buyer is entitled to claim damages in case the right of quiet possession of a buyer is distributed or the goods purchased turn out to be subject to a charge. Besides, Sections 57 to 59 entitle the buyer to exercise certain rights for non-delivery of goods or for any other breach of the contract. These rights include a claim for damages, specific performance, etc.
Q. Discuss the manner of taking cognizance of PIL.
A. The two methods of taking cognizance of PIL are -
Letters and Telegrams
The courts, with the aim of enabling even the poor and disadvantaged to seek judicial redressal of their grievances, have dispensed with procedural formalities to such an extent that they have even accepted letters, postcards, and telegrams, addressed to judges, the court, or the Legal Aid Committees, as writ petitions, and have taken appropriate action.
Suo Moto
Even if nobody files a petition before the court, in case there is a violation of the rights of people, the court can initiate the proceedings on its own by simply taking note of it either
through a newspaper or through any other source. Such practice is called suo moto.
Q. Discuss in brief the structure and purpose of Consumer International (CI).
A. Structure - The membership of the Consumers International has two categories -one, the full members, and the other known as 'The Affiliates'. Full membership is given to those organizations which give a proportion of their gross annual income while the other members - Affiliates - pay a membership fee. 15 members of the council have entrusted the work of charting the Consumers International's course of action. Six council members form executive which drafts the budget and policies for the council's approval.
Purpose - CI believes that strong and effective consumer organizations can transform the world into a more just, equitable place & responsive to the people's needs. Consumers International's programs and campaigns mainly committed to consumers' interest. They include:
- promotion of consumer education and protection
- program on trade, food, health, and sustainable consumption.
- campaigns for proper controls on the marketing and use of pesticides, pharmaceuticals, tobacco, and other hazardous products.
- lobbying in the international bodies for checking anti-consumer programs (like the UN Guidelines for consumer protection).
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