Torts- Consumer Protection Act, 1986

8/20/2019 Torts- Consumer Protection Act, 1986

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Law OF TORTS- II

SANA

WASIM

B.A. L.L.B. (HONS.)

IIND SEMESTER


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Acknowledgement I would like to express my heartfelt gratitude towards our Contracts professor Dr. Eqbal Hussain for being a constant pillar of support and strength and

rendering us with invaluable information that assisted us in making of this

proect.


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CONSUMER

PROTECTION

ACT, 1986

Index1. Introduction

2. Need for Consumer Protection3. Objectives of the Consumer Protection Act


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4. Relevant Provisions of the Act. Im!ortant "efinitions#. Consumer $a% Protection in &orts'. Consumerism

(. &he Prevention of )ood Adulteration* 1+4+. "ru,s - Cosmetics Act* 1+41. Consumer Protection Council11. Remedies /nder the Act12. A!!eal13. $imitation Period14. Penalties1. References

INTRODUCTION&he Consumer Protection Act* 1+(# is a milestone in the histor0 of socio

economic le,islation in India. It is one of the most !ro,ressive and

com!rehensive re,ulations formulated to safe,uard the interest of a small

consumer in the countr0. It %as enacted after an inde!th stud0 of consumer !rotection la%s in several countries* and in consultation %ith re!resentatives of


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consumerbodies* trade and industr0* and etensive discussions %ithin the

,overnment. &he Act attem!ts to ,ive consumers com!lete !rotection from

mal!ractices of manufacturers* !roducers* su!!liers* %holesalers and retailers.

&he Act is desi,ned to mae uic chea! and s!eed0 justice to the com!laints of

a common consumer. All the !rovisions of the Act came into force from 1 5ul0

1+('. &he Act etends to the %hole of India ece!t the 6tate of 5ammu and

7ashmir. &he Act %as amended in 1++1 and 1++3 for addressin, certain

loo!holes. )urthermore* to mae the Consumer Protection Act more functional

and !ur!oseful* a com!rehensive amendment %as introduced in "ecember

22* and brou,ht into force from 1 8arch 23. As a seuel* &he Consumer

Protection Rules* 1+(' %ere also amended and notified on 8arch 24.

Remed0 for consumers under this Act is throu,h an effective threetier uasi

judicial mechanism com!risin, the district forums at the ,rass roots* state

commissions at the state level and the National commission located at "elhi at

its a!e. At !resent there are 3 6tate Commissions* one in each 6tate or /nion

territor0 and '1 district )orums. &he 6tate 9overnments are accountable for

settin, u! the district forums and the 6tate commissions. &he 9overnment of

India has declared 24th November as :National Consumer "a0; as it %as on that

da0 then !resident of India had ,iven his assent to the enactment of this historic

Act.


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• &he Act also envisa,es establishment of consumer !rotection councils at

the central* state and district levels* %hose main objectives %ill be to

!romote and !rotect the ri,hts of consumers

• &o !rovide a sim!le* s!eed0* and ine!ensive redressal of consumer

,rievances* the Act envisa,es threetier uasijudicial machiner0 at the

national* state* and district levels. &hese are National Consumer "is!utes

Redressal Commissions no%n as 6tate Commissions and "istrict

Consumer "is!utes Redressal )orums no%n as "istrict )orums

• >n,a,ement of an advocate is not mandator0 to file a com!laint under the

Consumer Protection Act.

Need for

cons!er

"ro#ec#$onIn order to maimise !rofits* man0 businessmen e!loit consumers b0su!!l0in, !oor ualit0 ,oods at hi,her !rices. &he0 ado!t unfair trade !racticessuch as adulteration* boardin,* blacmaretin,* etc.

As a result consumers do not ,et value for their mone0.


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&he0 need to be !rotected from s!urious* du!licate and adulterated !roducts* !ollution of air* %ater and noise* and misleadin, advertisin,.

Consumers need !rotection due to the follo%in, reasons@

1. Illiteracy and ignorance:

Consumers in India are mostl0 illiterate and i,norant. &he0 do not understandtheir ri,hts. A s0stem is reuired to !rotect them from unscru!ulous

businessmen.

2. Unorganised consumers:

In India consumers are %idel0 dis!ersed and are not united. &he0 are at the

merc0 of businessmen. On the other hand* !roducers and traders are or,anisedand !o%erful.

3. Spurious goods:

&here is increasin, su!!l0 of du!licate !roducts. It is ver0 difficult for anordinar0 consumer to distin,uish bet%een a ,enuine !roduct and its imitation.e !a0s the !rice for the ori,inal but ,ets a substandard !roduct. It is necessar0to !rotect consumers from such e!loitation.

4. Deceptive advertising:

6ome businessmen ,ive misleadin, information about ualit0* safet0 and utilit0of !roducts. Consumers are misled b0 false advertisement and do not no% thereal ualit0 of advertised ,oods. A mechanism is needed to !revent misleadin,advertisements.

5. Malpractices of usinessmen:

)raudulent* unethical and mono!olistic trade !ractices on the !art of businessmen lead to e!loitation of consumers. Consumers often ,et defective*inferior and substandard ,oods and !oor service.

Certain measures are reuired to !rotect the consumers a,ainst suchmal!ractices. 9reed0 businessmen indul,e in adulteration* boardin,* blacmaretin, and other ille,al !ractices.

!. "reedom of enterprise:


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consumers. If business does not !rotect consumerBs interests. 9overnmentintervention and re,ulator0 measures %ill ,ro% to curb unfair trade !ractices.

&hus* consumers need !rotection a,ainst the follo%in,@

aD /nsafe and harmful !roducts*

bD /nfair trade !ractices*

cD )alse advertisin,*

dD Abuse of mono!ol0 !o%er*

eD >nvironmental !ollution.

O%&ECTI'ES OF

THE CONSUMERPROTECTION

ACT


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• &o !rovide for the better !rotection of the interest of the consumer

• &o establish the consumer !rotection council at centre* state and district

level

• &o !rovide for the establish uasijudicial authorities for the settlement of

consumer dis!utes

• "istrict forum* 6tate commission and National commission are the main

!latforms for filin, the case

• &he act %as amended in 1++1* 1++2 and 22

• &o !rovide certain im!ortant scheduled commodities to the ration card

holders at reasonable rates at !rescribed uantum.

• &o indirectl0 control o!en maret !rices of certain commodities.

• &o !rotect the interests of consumers throu,h enforcement of =ei,hts -

8easures Act and rules there under

• &o im!lement 8inimum 6u!!ort Price 6cheme of the Central

9overnment to safe,uard farmerBs interests

• 8atters incidental and su!!lementar0 to the above objectives

• &o !romote - !rotect the ri,hts of consumers b0 the%a0 of

im!lementation of Consumer Protection Act.


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Re(e)*n#"ro)$s$ons of

#+e *c#Sec#$on 1-.


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Save as otherwise expressly provided by the central

government by notifications, this act shall apply to all goods

and services.

SECTION /

ACT Not in DE!"AT#!N !$ AN% !T&E 'A(

The provision of this act shall be in addition to and not in

derogation of the provisions of any other law for the time

being in force.

COMMENTS

!he provision of the act are in addition and not in derogation

of the provisions of any other law for the time being in force.

"anifestly# provisions of the $ct grant additional remedy to

the consumers but where the remedy itself is barred by some

provisions of some other act then the remedy which theconsumer prays cannot be granted by the various forums

constituted under the act )

%residency %ost "aster v. Dr. &. 'hanker (ao )**+ ,-

C%/ )0)

1here the additional rights and remedies are granted to the

consumers by the act itself# courts are not to interpret the same in such a manner as to cut and abridge the scope

thereof. (ights and remedies under the $ct cannot be curbed

either by 'tatutory arbitration provision contained in an

earlier law or by some arbitration agreement entered into by

the parties themselves. If that is not so# not only the scope of

the $ct would be entailed but by introducing arbitration


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clause whole of the act would be rendered inapplicable 2

/agdamba (ice "ills v. 3nion of India )**), ) C%/ -4+

I!"or#*n#de0n$#$onsCons!er of oods

1. An0 !erson %ho bu0s an0 ,ood for a consideration and

2. Includes an0 user of such ,oods %ith a!!roval of the bu0er


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Cons!er of Ser)$ces

1. An0 !erson %hich hires an0 services for a consideration2. Includes an0 beneficiar0 of such services availed of %ith the a!!roval of

the hirer.

2oods

&he e!ression E,oodsF has been defined %ith reference to its definition under the 6ales Of 9oods Act 1+13

,) !he goods which form the subect of a contract of sale may be either

existing goods# owned or

possessed by the seller# or future goods.,- !here may be a contract for the sale of goods the acquisition of which by the

seller depends upon

a contingency which may or may not happen.

,+ 1here by a contract of sale the seller purports to effect a present sale of

future goods# the contract operates as an agreement to sell the goods.

SER'ICES

6ervices means an0 descri!tion %hich is made available to !otential user

&here are t%o !arts in sevices

*. #NC'+S#!NA% AT

6ervices includes but not limited to the !rovision of facilities in connection %ith banin,* financin,* insurance* trans!ort* !rocessin,* su!!l0 of electrical* or other ener,0* boardin, or lod,in, or both* housin, construction* entertainment*amusement or !urve0in, of ne%s or other information.

-. EC'+S#!NA% AT

6ervice does not include G


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• &he renderin, if an0 service free of char,e* or

• /nder a contract of !ersonal services

CONTRACT OF SERVICE

It im!lies relationshi! of master and servant.

Contract for service

It im!lies a contract %here there is no master servant relationshi!.

Indian medical association v. &.%. 'hantha $I( )**5 'C 667. 'amira 8holi v. %rabha "anchanda $I( -779 'C )+96 ,patient

consent as defence

Cons!er d$s"#e=here a !erson a,ainst %ho and %hom a com!laint made deniesalle,ation.

Co!"(*$n#

Its means an alle,ation in %ritin, as G

/nfairH restricted trade !ractices ado!ted b0 trader service

!rovider.

9oods bou,ht suffer defect

6ervices hired suffered deficienc0

&rader char,es ecessive !rice than fied


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9oods ha?ardous to life ordered for sale

a?ardous services

CONSUMER LA3PROTECTION IN

TORTSIn addition to the remedies under contract and criminal la%* consumers have

ri,hts under tort la%.


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craft s!ecific le,islation to !rotect consumers. As a result* the Consumer

Protection Act of 1+(# %as enacted %ith the objective of !rovidin, Echea!*

sim!le and uicF justice to Indian consumers.

Cons!er$s!Consumerism is a movement or !olicies aimed at re,ulatin, the !roducts or

services* methods or standards of manufacturers* sellers and advertisers in the

interest of bu0ers* such re,ulation ma0be institutional* statutor0 or embodied in

a voluntar0 code occu!ied b0 a !articular or it ma0 result more indirectl0 from

the influence of consumer or,anisation. &he !rinci!le of :Caveat em!tor;

relieved the seller of the obli,ation to mae disclosure about the ualit0 of the

!roduct. In addition* the !ersonal relation bet%een the bu0er and the seller %as

one of the major factors in their relations.


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the a!ath0 and lac of education amon, the masses. No one has told them about

their ri,hts to be informed about !roduct ualit0* !rice* !rotection a,ainst

unsafe !roducts* access to variet0 of ,oods at com!etitive !rices* consumer

education etc. =hat consumers lac here are education and information

resources* testin, facilities* com!etent leadershi!* !rice control mechanism* and

adeuate uasijudicial machiner0. &he !roviders of ,oods and services have

been reluctant to ,ive due consideration to consumer interest !rotection.

6ome business in India have come to,ether to ado!t a code of conduct for

re,ulatin, their o%n activities. Re,ulation of business throu,h le,islation is one

of the im!ortant means of !rotectin, the consumers. Consumerism has over the

time develo!ed into a sound force desi,ned to aid and !rotect the consumer b0

eertin, le,al* moral and economic !ressure on !roducers and !roviders in

some of the develo!ed countries. &he success of consumerism lies in the

reali?ation of the business that there is no substitute for voluntar0 self

re,ulations. $ittle attention from the business %ill not onl0 serve consumers

interest but %ill also benefit them. &he best !ossible solution is that the

Consumers must be a%are of their ri,hts* join voluntar0 Consumer

or,ani?ations* raise voice a,ainst e!loitation and see redress of their

,rievances in time.


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THEPRE'ENTION

OF FOODADULTERATIONACT, 194-

INTRODUCTION–

)ood is one of the basic necessities for sustenance of life. Pure* fresh andhealth0 diet is most essential for the health of the !eo!le. It is no %onder to sa0that communit0 health is national %ealth.

Adulteration of foodstuffs %as so ram!ant* %ides!read and !ersistent thatnothin, short of a some%hat drastic remed0 in the form of a com!rehensivele,islation became the need of the hour. &o chec this ind of antisocial evil a

concerted and determined onslau,ht %as launched b0 the 9overnment b0introduction of the Prevention of )ood Adulteration


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Central le,islation for the %hole countr0 in this matter has been felt since 1+3'%hen a Committee a!!ointed b0 the Central Advisor0 N&ION O) )OO"A"/$&>RA&ION AC&* 1+4 3' of 1+4D.


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Drs *nd

cos!e#$cs Ac#,

19-INTRODUCTION

In 1+3' a


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1. In order to ,ive effect to the recommendations of the "ru,s >nuir0

Committee** in so far as the0 relate to matters %ith %hich the Central

9overnment is !rimaril0 concerned* a


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fallin, %ithin the Provincial $e,islative field. )or this reason it is not !ossible

to assi,n the !o%er to fi standards and to mae rules to an0 sin,le authorit0. In

order to assure that before an0 action is taen due consideration is ,iven to the

desirabilit0 of maintainin, uniformit0* !rovision has been made in Cha!ter JI

for a sin,le &echnical Advisor0 N"IN9 AC&6 AN" A"AP&A&ION OR">R6

1. &he Re!ealin, and Amendin, Act* 1+4+ 4 of 1+4+D.

2. &he Ado!tion of $a%s Order* 1+

3. &he !art < 6tates $a%sD Act* 1+1 3 of 1+1D.

4. &he "ru,s AmendmentD Act* 1+ 11 of 1+D.

. &he "ru,s AmendmentD Act* 1+# 3 of 1+#D.

#. &he "ru,s AmendmentD Act* 1+#2 21 of 1+#2D.

'. &he "ru,s and Cosmetics AmendmentD Act* 1+#4 13 of 1+#4D.

(. &he "ru,s and Cosmetics AmendmentD Act* 1+'2 1+ of 1+'2D.

+. &he "ru,s and Cosmetics AmendmentD Act* 1+(2 #( of 1+(2D.

1. &he "ru,s and Cosmetics AmendmentD Act* 1+(# '1 of 1+(#D.


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CONSUMER

PROTECTION

COUNCIL

Central Consumer Protection Council

It is established b0 the Central 9overnment %hich consists of the follo%in,members@


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• &he 8inister of Consumer Affairs* G Chairman* and

• 6uch number of other official or nonofficial members re!resentin, such

interests as ma0 be !rescribed.

•

State Consumer Protection Council

It is established b0 the 6tate 9overnment %hich consists of the follo%in,members@

• &he 8inister in char,e of consumer affairs in the 6tate 9overnment G

Chairman.

• 6uch number of other official or nonofficial members re!resentin, such

interests as ma0 be !rescribed b0 the 6tate 9overnment.

• such number of other official or nonofficial members* not eceedin, ten*

as ma0 be nominated b0 the Central 9overnment.

&he 6tate Council is reuired to meet as and %hen necessar0 but not less than

t%o meetin,s ever0 0ear.

CONSUMER DISPUTE REDRESSALA2ENCIES

• "istrict Consumer "is!utes Redressal )orum "C"R)D@ Also no%n as

the K"istrict )orumK established b0 the 6tate 9overnment in each district ofthe 6tate. &he 6tate 9overnment ma0 establish more than one "istrict)orum in a district. It is a district level court that deals %ith cases valuin, u!to 2 million /6L3'*D.

• 6tate Consumer "is!utes Redressal Commission 6C"RCD@ Also no%n

as the K6tate CommissionK established b0 the 6tate 9overnment in the 6tate.It is a state level court that taes u! cases valuin, less than 1 million/6L1(*D

• National Consumer "is!utes Redressal Commission NC"RCD@

>stablished b0 the Central 9overnment. It is a national level court that

%ors for the %hole countr0 and deals %ith amount more than 1 million/6L1(*D.


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OBJECTIES

Objectives of Central Council

&he objective of the Central Council is to !romote and !rotect the ri,hts of theconsumers such as@aD G the ri,ht to be !rotected a,ainst the maretin, of ,oods and services %hichare ha?ardous to life and !ro!ert0.

bD G the ri,ht to be informed about the ualit0* uantit0* !otenc0* !urit0*standard and !rice of ,oods or services* as the case ma0 be so as to !rotect theconsumer a,ainst unfair trade !ractices.cD G the ri,ht to be assured* %herever !ossible* access to a variet0 of ,oods andservices at com!etitive !rices.dD G the ri,ht to be heard and to be assured that consumerBs interests %ill receivedue consideration at a!!ro!riate forums.eD G the ri,ht to see redressal a,ainst unfair trade !ractices or restrictive trade

!ractices or unscru!ulous e!loitation of consumersM and

fD G the ri,ht to consumer education.

Objectives of State Council

&he objects of ever0 6tate Council shall be to !romote and !rotect %ithin the6tate the ri,hts of the consumers laid do%n in clauses aD to fD in centralcouncil objectives.

[

J!RIS"ICTIO#


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1.Jurisdiction of District Forum

a# $%&U'I()* +U)ISDI&,I-'

6ubject to the other !rovisions of this Act* the "istrict )orum shall have jurisdiction toentertain com!laints %here the value of the ,oods or services and thecom!ensation* if an0* claimed does not eceed ru!ees t%ent0 lahs.

# ,%))I,-)I( +U)ISDI&,I-'

A com!laint shall be instituted in a "istrict )orum %ithin the local limits of%hose jurisdiction@

aD G the o!!osite !art0 or each of the o!!osite !arties* %here there are more than

one* at the time of the institution of the com!laint* actuall0 and voluntaril0

resides or carries on business or has a branch office or !ersonall0 %ors for

,ain* or

bD G an0 of the o!!osite !arties* %here there are more than one* at the time of

the institution of the com!laint* actuall0 and voluntaril0 resides* or carries on

business or has a branch office* or !ersonall0 %ors for ,ain* !rovided that in

such case either the !ermission of the "istrict )orum is ,iven* or the acuiesce

in such institution of the suit* of such of the o!!osite !arties %ho do not reside*

or carr0 on business or have a branch office* or !ersonall0 %or for ,ain* as the

case ma0 be* or

cD G the cause of action* %holl0 or in !art* arises.

2.Jurisdiction of state council


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1D 6ubject to the other !rovisions of this Act* the 6tate Commission shall have jurisdiction@

aD G to entertain

iD G com!laints %here the value of the ,oods or services and com!ensation* if

an0* claimed eceeds ru!ees t%ent0 lahs but does not eceed ru!ees onecroreM

and

iiD G a!!eals a,ainst the orders of an0 "istrict )orum %ithin the 6tateM and

bD G to call for the records and !ass a!!ro!riate orders in an0 consumer dis!ute

%hich is !endin, before or has been decided b0 an0 "istrict )orum %ithin the

6tate* %here it a!!ears to the 6tate Commission that such "istrict )orum haseercised a jurisdiction not vested in it b0 la%* or has failed to eercise a

jurisdiction so vested or has acted in eercise of its jurisdiction ille,all0 or %ith

material irre,ularit0.

3.Jurisdiction of National Council

Su$%ect to t&e ot&er 'ro(isions o) t&is Act* t&e #ationalCommission s&all &a(e %urisdiction+

iD com!laints %here the value of the ,oods or services and com!ensation* if an0*

claimed eceeds ru!ees one croreM and

iiD a!!eals a,ainst the orders of an0 6tate Commission

aD G to call for the records and !ass a!!ro!riate orders in an0 consumer dis!ute%hich is !endin, before or has been decided b0 an0 6tate Commission %here ita!!ears to the National Commission that such 6tate Commission has eerciseda jurisdiction not vested in it b0 la%* or has failed to eercise a jurisdiction sovested* or has acted in the eercise of its jurisdiction ille,all0 or %ith materialirre,ularit0.


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Re!ed$es nder

#+e Ac#Remedies 9ranted /nder Consumer Protection Act* 1+(#

&he "istrict )orum H 6tate Commission H National Commission ma0 !ass one or

more of the follo%in, orders to ,rant relief to the a,,rieved consumer @

1. to remove the defects !ointed out b0 the a!!ro!riate laborator0 from ,oods in

uestionM

2. to re!lace the ,oods %ith ne% ,oods of similar descri!tion %hich shall be

free from an0 defectM

3. to return to the com!lainant the !rice* or* as the case ma0 be* the char,es !aid

b0 the com!lainantM

4. to !a0 such amount as ma0 be a%arded b0 it as com!ensation to theconsumer for an0 loss or injur0 suffered b0 the consumer due to ne,li,ence of

the o!!osite !art0M

. to remove the defects or deficiencies in the services in uestionM

#. to discontinue the unfair trade !ractice or the restrictive trade !ractice or not

to re!eat themM


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'. not to offer the ha?ardous ,oods for sale@

(. to %ithdra% the ha?ardous ,oods from bein, offered for sale@

+. to !rovide for adeuate costs to !arties.

A""e*(

An0 !erson a,,rieved b0 an order made b0 the "istrict )orum ma0 !refer an

a!!eal a,ainst such order to the 6tate Commission %ithin a !eriod of thirt0 da0s

from the date of the order* in such form and manner as ma0 be !rescribed@

PROJI">" that the 6tate Commission ma0 entertain an a!!eal after the e!ir0

of the said !eriod of thirt0 da0s if it is satisfied that there %as sufficient cause

for not findin, it %ithin that !eriod


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Limitation 'eriod

1D G &he "istrict )orum* the 6tate Commission or the National Commissionshall not admit a com!laint unless it is filed %ithin t%o 0ears from the date on%hich the cause of action has arisen.

2D G Not%ithstandin, an0thin, contained in subsection 1D* a com!laint ma0 beentertained after the !eriod s!ecified in subsection 1D* if the com!lainantsatisfies the "istrict )orum* the 6tate Commission or the National Commission*as the case ma0 be* that he had sufficient cause for not filin, the com!laint%ithin such !eriod@ Provided that no such com!laint shall be entertained unlessthe National Commission* the 6tate Commission or the "istrict )orum* as thecase ma0 be* records its reasons for condonin, such dela0.


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Pen*(#$es

=here a trader or a !erson a,ainst %hom a com!laint is made 2or the

com!lainant fails or omits to com!l0 %ith an0 order made b0 the "istrict

)orum* the 6tate Commission or the National Commission* as the case ma0 be*

such trader or !erson 2or com!lainant shall be !unishable %ith im!risonment

for a term %hich shall not be less than one month but %hich ma0 etend to three0ears* or %ith fine %hich shall not be less than t%o thousand ru!ees but %hich

ma0 etend to ten thousand ru!ees* or %ith both@

PROJI">" that the "istrict )orum* the 6tate Commission or the National

Commission* as the case ma0 be* ma0* if it is satisfied that the circumstances of

an0 case so reuire* im!ose a sentence of im!risonment or fine* or both* for a

term lesser than minimum term and the amount lesser than the minimum

amount* s!ecified in this section.

:ucknow Development $uthority v. ".8. ;upta $I( )**0 'C 494

In this case the 6u!reme Court em!hasised u!on the basic !rinci!leof consumer justice embodied in the Consumer Protection Act*%hen it s!oe about the need for consumer courts to a%ardcom!ensation commensurate %ith the injustice suffered b0 theconsumer . It called for a liberal inter!retation of the !rovision inthe la% for com!ensation.


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References1. a/ of ,orts0 y ). angia

2. ///.indiananoon.com

3. ///.slidesare.net

4. ///.consumersinternational.com
http://www.indiankanoon.com/http://www.slideshare.net/http://www.consumersinternational.com/http://www.slideshare.net/http://www.consumersinternational.com/http://www.indiankanoon.com/

Torts- Consumer Protection Act, 1986

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Transcript of Torts- Consumer Protection Act, 1986