Defect, deficiency, unfair trade practices and services23/07/2020
A good refers to a tangible item received by the consumer from the trader or producer for a considerable amount. Tangible is something that can be touched, seen and felt. The possession of goods can be transferred from one person to another. Goods also have a duration of storage.
Section 2(1)(f) of the Consumer Protection Act, 1986 defines defect in goods. The defect is defined as any imperfection, fault, a shortcoming in certain parameters of the good which are as follows:
The above has a level that needs to be maintained by or under any law in force at that time.
Hence, if any good is not up to the mark or is faulty, that is, does not meet the mark of the laws applicable in the particular period, it is defective.
Cases of Defect
Laxmi Engineering Works vs P.S.G. Industrial Institute, Abhay Kumar Panda v. Bajaj Auto Limited and various other cases that resulted in major debates were initially filed as cases for the defect in good. The former saw a defect in a machine while the latter saw a defect in a vehicle purchased. Other prominent cases include Kevin Enterprise vs Joint Cit, and cases at the Supreme Court, Union Of India (Uoi) vs Ratilal Jadavji and Union Of India vs Behari Lal And Co.
These cases show the repercussions of defective goods. While the first two cases resulted in a whole new deliberation upon the definition of the consumer, the later cases were all under the ambit of defective goods. However, all these case complaints find its root in the good received being defective, hence highlighting its meaning and importance.
Online Shopping and Defect in Goods
Online shopping is a recent development in the market. It has introduced a new and modern style of interaction between consumers and sellers by benefitting both consumers and sellers. The consumers find online shopping extremely convenient while the sellers now have a wider access for sale of their products. However, this development in the global sphere also has its repercussions. It has brought in a large number of complaint of defective goods.
In many cases, the good purchased online looks nothing like what was portrayed of the product. Goods have arrived broken, faulty in design, torn, adulterated, impure and so forth. This is a great hurdle in Consumer Protection and is a problem that remains unsolved today.
Online shopping has turned disastrous to the consumer in cases like Anil Kumar v. M/s Naaptol Online Shopping Pvt. Ltd. and M/s Gati Limited, Vinodkumar, Ernakulam Vs. Shoed Merchant, Mumbai & Ebay India and the Chitra Vittal case.
Sellers must take care while sending their goods for transit. The goods should be handled with care during the transportation process. The sellers should not attempt to cheat the consumers by intentionally handing over defective goods to them.
Consequences of Defective Goods
Defective goods can do much greater harm than we imagine. Safety is the foremost in the protection of consumer interests. Defective goods can cause such a harm to the safety of consumers that it could possibly affect them in future too.
Defective goods can cause diseases and bodily disabilities as well, as seen in the world-famous Grant vs. Australian Knitting Mills.
A small defect in a vehicle can cause an accident, a small defect in a food item can cause death. Sellers must eliminate such a risk of defect that can cause a disruption in the normal standards of health and hygiene of a consumer.
The consumers of the country today are in dire need of protection from goods that are not up to the mark. The Consumer Protection Act, 1986, tries to safeguard the interests of the consumers by developing mechanisms to deal with consumer grievances.
A service refers to an intangible benefit received by the consumer from the service provider for a considerable amount. Intangible is something that cannot be touched or seen but can be felt.
Section 2(1)(g) of the Consumer Protection Act, 1986 defines deficiency. According to this definition, any fault, shortcomings, inadequacy, and imperfection in the quality, nature or manner of performance of the service is a deficiency. This standard has to be maintained by or under any law for the time being in force.
Hence, if any service is not up to the mark or is flawed, that is, does not meet the mark of the laws applicable in the particular period, it is deficient.
Deficiency of Service:
Deficiency of Service sprawls across various fields like medicine, construction, transport and so on. Deficiency in service often causes inconvenience, injury and in aggravated cases, death. Services are to be provided by immensely equipped individuals with utmost proficiency. If services are not provided with care, severe damage can be caused to the receiver. This damage includes physical, mental and economic loss.
Cases of deficiency of service are rampant in India due to inefficiency and negligence. The Consumer Protection Act is a way to penalise curb this lax behaviour and curb negligent activities in future. It is the much-required means of providing justice to those consumers who have been at a loss or inconvenience.
The field of medicine has seen the most complaints, ranging from Ayesha Begum v. All India Institute of Medical Sciences to the famous Indian Medical Association v. V.P. Shantha. The former dealt with a wrong diagnosis leading to economic loss and physical weakness, while the latter argued upon the distinction of the contract of service and contract for service. Other cases in this field include Gulam Abdul Hussain v. Katta Pullaiah Choudhary and Consumer Unity and Trust Society Vs. State of Rajasthan.
The field of construction to has seen cases of deficiency of service, as noted in the case, Lucknow Development Authority v. M.K. Gupta. The field of tailoring involves A.C. Monday v. Cross Well Tailor And Anr.
These cases are the various instances where the Indian law rightly intervened and redressed the consumers. It poses as a strong deterrent to all those service providers who indulge in fraudulent or negligent means of operation.
Contract of Service of Contract for Service:
As clearly mentioned in the definition of service, a contract of service is excluded from service. But what does this term actually mean? The concepts are as follows:
A Contract of Service involves an employer and an employee, similar to a master-servant relationship. All the actions of the employee are monitored, controlled and regulated by the employer. The employee acts on the directions of the employer, hence he is told what task to do and precisely how to do it. Hence, the employee is not personally liable for the acts done by him. The employee can be hired and fired at any time, on the discretion of the employer. The acts of an employee arising out of a contract of service is not a service and hence cannot be deficient.
Unfair Trade Practice
An unfair trade practice is defined under Section 2(1)(r) of the Consumer Protection Act, 1986. According to this definition, it is a trade practice carried out for the promotion of sale. It is the distribution or utilisation of any good or service by adopting a deceptive method or practice.
The following practices fall under unfair trade practice:
An oral or written statement or visible representation that:
- Falsely represents a good or service to be of a particular standard, quality, grade and so on.
- Falsely represents any re-built, second-hand, reconditioned, renovated or old goods as new.
- Represents that a good or service has sponsorship, approval, uses, benefits and so on which they do not have. The same could apply to the seller or service provider.
- Makes a misleading or false representation regarding the need and usefulness of any good or service.
- Provides to the public any warranty or guarantee of the performance of the length of the life of the product. A service can be continued till deemed satisfactory.
- Gives a misleading image of the good, service or trade like the price of the product.
For the above clauses, any statement made via expression by sellers on the wrapper or container of the item can qualify for unfair trade practice. The information of the product is also placed inside the item, attached to the product, or accompanying it.
- An advertisement published in any newspaper or other means of communication to the general public may also result in unfair trade practice if the price communicated is misleading or a bargain price. This means that an unfair trade practice would be when a rational individual on reading, hearing or seeing the advertisement would think to be a bargain price as compared to the product’s ordinary sale price.
- Wrongful or deceitful permissions or expressions like:
- Offering gifts, prizes and so on without any intention of actually fulfilling the expression.
- Putting across a product as free of charge when it is actually not as the cost is being covered partly or wholly in the transaction amount.
- Conducting games of chance or skill like the lottery in order to promote a particular product directly or indirectly.
- Not granting participants of a scheme their prize by closing the information about the final results of the scheme.
- Allowing the sale of products, having the knowledge or reason to believe that the product is not up to the standards of a competent authority. This could be in terms of design, contents, packaging, etc.
- Permitting the hoarding or destruction of products with the intention of raising the prices of the goods.