As per section 2(1)(b) of the Consumer Protection Act, 1986 (“Act”) a Complaint means an unfair trade practice, goods bought by a consumer which suffer from a defect, services availed by a consumer suffer from a deficiency, overcharging by the trader or goods which are hazardous and sold in contravention of law.
The essential features of a complaint is that it ought to be filed by a consumer, and there needs to be a dispute with the manufacturer or trader. This dispute may be on any category mentioned above. A special case of disputes is a complaint on quality of products.
The word quality is not defined by the Act. As per Black’s Law Dictionary, Quality means, “In respect to persons, this term denotes comparative rank; state or condition in relation to others; social or civil position or class. In pleading, it means an attribute or characteristic by which one tiling is distinguished from another.”[i] and Satisfactory Quality means “Goods that are sold have a degree of implied quality that it will meet certain requirements or standards in terms of durability, use and appearance.”[ii]
In essence, quality is the state or condition of a product which needs to have a certain minimum requirements either expressed or implied. These minimum standards may be contractual or could be mandated by law.
In India, consumers typically donot sue the manufacturers on quality issues as many times quality standards are not expressly spelt out in the contracts. Also the suits for quality are also coupled with deficiency of service suits as the consumer would have gone to the manufacturer to rectify the defect many times.
Further, the manufacturers typically take the defence of expert opinion. onus of proof and prompt service to counter the claims for quality and deficiency of service.
- Expert Opinion: In the case of Bajaj Auto Ltd. and others v/s Mr. Lawrence Mario Braganza, the Hon’able State Consumer Disputes Redressal Forum of Goa had concluded that an expert opinion is not required. Mere fact that the consumer had to take the product to the service centre regularly makes one believe that there is some defect in the product. The learned judges commented in the above case that “If a new vehicle requires such constant repairs and replacement there is obviously some problem in the vehicle and it is the duty and responsibility of the opposite parties who earn profits on such sale, to see that the consumer does not face hardships, inconvenience, and expense.” Therefore, it is a misconceived notion that for claiming defective quality an expert opinion is required. If the consumer has taken the product for repair many times and still it does not fuction satisfactorily, then we can safely state that the product may suffer for a quality defect. The onus of getting an expert opinion then is transferred to the defendant (ie. the manufacturer).
In Kirloskar Oil Engines Ltd. v/s Rishabh Fashion India(P) Ltd. by the Hon’able State Consumer Redressal Commission, Delhi, the learned judges stated “It is not for the consumer to engage an expert or engineer or some other expert to verify whether the goods have manufacturing defect or not. He is a wronged person and to expect him to incur unnecessary expenses in availing the services of an expert is too much. The onus lies upon the trader or manufacturer to show that their goods did not suffer from manufacturing defect.”
- Onus of Proof: In the case of MGF Automobiles Ltd. V/s Neelam Trading Co. and others the Hon’able State Consumer Redressal Commission, Delhi stated that “It is a misconceived notion that unless and until the vehicle suffers from inherent manufacturing defect it may not be declared as a defective vehicle. The onus lies heavily upon the manufacturer to prove that the vehicle does not suffer from any inherent manufacturing defect that may need its replacement or may need for refund of the cost of the vehicle. Mere allegations as defective of the vehicle are sufficient to shift this onus as to put another burden upon the consumer who has already suffered at the hands of the manufacturer to incur further expenses to engage an automobile expert to get the opinion whether it has inherent manufacturing defect or not, is neither the requirement of the law nor even otherwise prudent to make the consumer suffer further.” The learned judges further stated that “Whenever a consumer decides to purchase a brand new vehicle or goods at considerably high price and does not choose to have a second or third hand vehicle the minimum expectation of a consumer is that he would not face inconvenience or physical discomfort or other kind of financial loss etc. for getting the defects removed every second or third day. Otherwise the very intention of a consumer to go for a very costly brand new vehicle should suffer such a blow that he would undergo immense mental agony, harassment, emotional suffering, physical discomfort and would deem himself as subject of injustice”.
The aforesaid position in law has also been reiterated by the Hon’able State Consumer Redressal Commission of Orissa in Kinetic Engineering and others V/s Kanan Bala Biswal and others. The learned judges commented “we have got reason to believe that in spite of attempts made by opposite party No.1, to remove the defect in the vehicle soon after it was sold to the complainant, its defect could not be removed. Therefore, in absence of any expert’s opinion from either side, it cannot be ruled out that the said vehicle suffers from inherent manufacturing defect and is of no use.” The said position was reiterated in Sooraj Automobiles Limited V/s Sadananda Sahu and another reported in II (2007) CPJ 130 and Voltas Limited v/s Amritpal Kaur in the Hon’able State Consumer Redressal Commission of Chandigarh.
The aforesaid position in law was again reconfirmed in Hyundai Motors India Ltd v/s Affiliated East West Press (P) Ltd. and others by The Hon’ble State Consumer Redressal Commission, Delhi. The learned judges exclaimed “It is again a misconceived notion that in respect of the vehicle expert opinion should be obtained so as to find out whether it suffers from any manufacturing defects or that the vehicle could be declared as a defective vehicle. Section 13 of the Act, only confines to defect in the goods which could be determined without proper analysis or test of the goods without obtaining a sample of the goods and sealing it, authenticating it and sending the sample so sealed to the appropriate laboratory for making analysis or test”. The Commission further exclaimed “If a brand new vehicle starts giving problem within a short duration of one month and is taken to the garage time and again at the cost of time and expenses incurred by the consumer, the amount of mental agony, harassment and emotional trauma and physical discomfort the consumer suffers is immeasurable in terms of money, though money is known as the panacea for all maladies.”
Hence, it is an incorrect notion that the onus of proving that there was a quality defect in the product lies with the consumer. If the consumer can satisfactorily show that he took reasonable care in product usage and had to suffer regular breakdowns and multiple visits to the service centres, the onus of proof shifts to the defendant.
- Deficiency of Service: As mentioned earlier, deficiency of service is a ground that goes hand-in-hand with quality disputes. The reason for this is that the defendant would try to take the defence of prompt service whenever the product was brought in for repair.
In a decision of the Hon’able Orissa State Commission reported in 91 (2001) CLT (O.S.C.) 29 in a case in between Binod Kumar Bhawsinka vrs. Tata E&L Co. Limited and others, it has been held that manufacturer / dealer, if fails to rectify the defect during warranty period, it amounts to deficiency in service. Almost similar findings is there by the Hon’ble National Commission in a case reported in IV (2007) CPJ 161 (NC) (Hindustan Power Plus Limited vrs. Santosh Drillers and others). In this case, despite of repair, due to manufacturing defect, machine did not work during warranty period. Further, in a decision of the Hon’able State Commision of Orissa reported in 2003(1) OLR (CSR)-74 (Sanjay Kumar Agarwal vrs. M/s. LML Limited and two others, the dealer and manufacturer are directed to pay back the price of the scooter with interest which scooter suffered from inherent manufacturing defect and could not be rectified by the dealer and the manufacturer. In a case in between M/s. Bajaj Auto Limited and another vrs. Sri A. Nageswar Rao and another, reported in 2001 (II) O.L.R. (CSR) 13, the Hon’able State Commision of Orissa has observed that there is non-rectification of defect in the scooter by the dealer during warrantee period though the purchaser of the scooter is entitled for the same free of cost. The above position in law was reiterated in Mithila Motors Limited v/s Abdul Razaque and others by the Hon’able State Commision of Orissa.
In the case of Atul Vijay Madan v/s Tata Engineering and Locomotive Co. and others the Hon’able Consumer Disputes Redressal Comission, Maharashtra commented that “We would like to mention here that the Members sitting on Bench are owning cars and it is their personal experience that before giving delivery for any defect rectified, one has to sign Satisfaction Note, then only the car is allowed to be taken out from the Service Centre by any Authorised Dealer. So, the Sterling Motors or for that matter Tata Motors cannot be allowed to argue that every time defects were rectified and the complainant noted down his Satisfaction Note and put his signature. This was the simple formality the poor consumer has to follow to take delivery of the car from the Service Centre after some jobs done at the instance of consumer. So, no value can be attached to the Certificate allegedly signed by the complainant in favour of Sterling Motors to hold that the car was delivered every time free from defects as was tried to be contended before us by the Counsel for the O.Ps.”
The Hon’able National Consumer Disputes Redressal Commission, New Delhi in the case of Bombay Brazzerie vs. Mulchand Agarwal & Anr. (First Appeal No. 613/95). The learned judges commented “Deficiency in service has two aspects- (i) claim for the amount of actual loss and (ii) damages for inconvenience, harassment and mental tension.
In Ruxley Electronics v. Forsyth [1996] AC 344, HL, Ruxley, the builder had been contracted to build a 7 ft. 6” swimming pool but constructed a 6 ft. deep swimming pool. The pool was safe for diving and the shortfall did not decrease its value. At first instance the trial Judge rejected the claim for GBP 21,000/- for reinstatement but awarded GBP 2500 for loss of amenity. For certain reasons the loss of amenity award was not in issue in the House of Lords. However, several of the Law Lords commented on it. Lloyd of Berwick LJ said that “He (the judge) took the view that the contract was one ‘for the provision of a pleasurable amenity’. In the event, Mr. Forsyth’s pleasure was not so great as it would have been if the swimming pool had been 7 feet 6 inches deep. This was a view which the judge was entitled to take.” However Lord Mustil indicated a more principled approach to the assessment of damages in such situation he said, “The law must cater for those occasions where the value of the promise to the promisee exceeds the financial enhancement of his position which full performance will secure. This excess, often referred to in the literature as the ‘consumer surplus’ is usually incapable of precise valuation in terms of money, exactly because it represents a personal, subjective and non-monetary gain. Nevertheless where it exists the law should recognise it and compensate the promisee if the misperformance takes it away.”
Therefore, getting the product for repair multiple times by the consumer proves without reasonable doubt that the product suffers from an inherent quality defect and also amounts to deficiency of service by the manufacturer.
Conclusion:
In essence, complaints on quality of a product can stand judicial scrutiny and the suits can be successful. The consumer ought to know his rights and should have cooperated with the manufacturer to take necessary steps in resolving quality issues/defects in the product.