The preamble of Consumer Protection Act reads: An act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumer disputes and for matters connected therewith.
And under Section 9 of the Consumer Protection Act, various Consumer Forum at various levels, i.e. District Consumer Forum, State Commission and National Disputes Redressal Commission have been set up. The jurisdiction of the consumer forums is mainly pecuniary… a consumer matter starts with filing of a consumer complaint in a consumer forum/court at a district level, when the compensation demanded does not exceed Rs 20 lakhs and with State Commission upto 1 crore.
The complaint has to be filed in physical form with a consumer forum/court and kindly note there is no procedure to file a complaint either by Fax or online over the Internet with any government established consumer forum/court. As according to the rules the complaint has to be signed by the Complainant in original and has to accompany with the affidavit in original only. Basically, the filing procedure in a consumer forum would be as follows:
1. Complaint has to be filed on a plain paper in triplicate/quadruplicate in person, depending upon the number of opposite parties.
2. It should include name & address of complainant and opposite party, which should be followed by facts/transaction, the resulting grievance and lastly compensation and relief sought.
3. Documents like payment proof i.e. receipt is most relevant, further correspondence with the opposite party and any other supporting document should be attached to the main complaint as Annexures !
4. Further The complaint should be accompanied by specified fees and be signed by the complainant.
5. Complaint can be filed with the District Forum in whose jurisdiction the opposite party reside or carries on business or where the cause of action arose, in case value of goods and services availed along with compensation claimed is less than 20 Lakhs, otherwise complaint can proceed at higher levels.
Though preferably, before filing of a consumer complaint, it is better to get in touch with the Opposite Party in writing either through normal correspondence or in case of prima-facie matters, to get them service with a Legal Notice. This provides an opportunity to settle the matter initially.
The procedure in a consumer forum takes on an average 18-24 months, which involves various dates after every 2-3 months interval, which can either be presented by the Consumer himself or through a representative or a professional lawyer.
While trying the matter, the District Consumer Forum has the same powers as are vested in a civil court under Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely:—
(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;
(ii) the discovery and production of any document or other material object producible as evidence;
(iii) the reception of evidence on affidavits;
(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
(v) issuing of any commission for the examination of any witness, and
(vi) any other matter which may be prescribed.
And also most importantly the consumer forum has been empowered to deal with matters involving false evidence laid down before it, where criminal proceedings can be initiated (refer: Reliance Mobile V Hari Chand Gupta – Punitive Damages for False Affidavit). This has been provided specifically under section 13 of the Consumer Protection Act:
(5) Every proceeding before the District Forum shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Code (45 of 1860), and the District Forum shall be deemed to be a civil court for the purposes of section 195, and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
The decision of the Consumer Forum is called the order, which mainly involves re-compensating the consumer and also providing for legal expenses and reasonable/exemplary compensation. Against which, the opposite party can prefer an appeal within 30 days of the receipt of the order, with the State Commission.
And in case no appeal has been filed and order has not been complied with, the consumer/complainant can file an execution proceedings against the Opposite party to enforce the order under Section 25/27 of the Consumer Protection Act.
National Commission: Consumer Law does not cover Share Trading
Regular trading in the sale and purchase of shares is a purely commercial activity and the only motive is to earn profits. Therefore, this activity being purely commercial one, is not covered under the provisions of the Act.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
( REVISION PETITION NO.3060 OF 2011 – Against the order dated 25.5.2011 in Appeal No.603 of 2009 of the State Commission, Andhra Pradesh )
M/s. Steel City Securities Ltd.
PG Road, Secunderabad, AP
Through its Manager … Petitioner
Versus
1. Shri G.P. Ramesh
Madhuranagar
S.R. Nagar, Hyderabad
A.P.
2. Smt. Padma G.
Madhuranagar
S.R. Nagar, Hyderabad
A.P. …Respondents
BEFORE:
HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
Pronounced on: 3rd February, 2014
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
1. Present revision petition has been filed by the Petitioner/Opposite Party under Section 21(b) of Consumer Protection Act, 1986 (for short, ‘Act’) challenging the impugned order dated 25.5.2011 passed in F.A. No. 603 of 2009 by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (for short, ‘State Commission’).
2. Respondents/Complainants, filed a consumer complaint under Section 12 of the Act on the allegation that they are husband and wife and they are transacting shares with the petitioner through their Client ID No.1202230000004809 with OPID No.22300 and client I.D. No.1202230000005023 with DPID No.22300 respectively. On 24.01.2008, respondent no.1 parked his Scooter in front of a shop to purchase a refill. After he came out he found that his Rexene box was missing which was hanged to his scooter. The said bag contained blank signed depository participant slip books of himself and of respondent no.2. Thereafter, he immediately informed the said incident over phone to the petitioner and requested it not to allow any transactions on the said depository participant slips. The petitioner advised him to lodge a police complaint and enclose the same alongwith his representation for their record purpose. Petitioner also assured him that they will not allow any transaction on the said depository participant slips which were lost. Accordingly, respondent no.1 lodged a complaint before the S.R. Nagar, Police on the same day i.e. on 24.01.2008. The police authorities after investigation issued a certificate on 30.01.2008 stating that efforts were made to trace the above slips but all are in vain. Then, respondent no.1 submitted a written representation to the petitioner on 30.01.2008 along with the copy of the police complaint and requested them to issue new DPID books. However, there was no response. Later on, respondents came to know that petitioner sold the shares worth Rs.11,768.37/- dated 29.01.2008 and Rs.1,78,661.69 respectively, belonging to the respondent No.2. In spite of the assurance that petitioner will not transact till new books are issued, the petitioner sold the shares which is unfair and hence it is bound to reimburse the same, Since there no response, the respondent sought reimbursement of a sum of Rs.1,78,661.69 and Rs.11,768.37 with interest @ 18% per annum from 29.01.2008 till date of payment to respondent No.2. Further petitioner to issue new DPID books in favour of respondents, besides Rs.30,000/- each towards compensation and Rs.10,000/- as costs of the complaint.
3. Petitioner filed its counter denying the averments. Further, it denied having advised the respondents to lodge a complaint before the Police. The complaint is not maintainable as there is agreement between them that in case of dispute, they shall approach the Arbitrator. The respondents have failed to show any deficiency of service/unfair trade practice. Lastly, the respondents are not ‘consumers’ since the transactions are commercial in nature.
4. After hearing the parties and going through the record, District Forum held that the petitioner has not committed any deficiency in service nor unfair trade practice and accordingly dismissed the complaint.
5. Aggrieved by the order of District Forum, respondents filed appeal before the State Commission which allowed the appeal and set aside the order passed by the District Forum. It directed the petitioner to reimburse a sum of Rs.1,78,661.69 and Rs.11,768.37 to the second complainant.
6. Now, petitioner has filed the present revision petition.
7. We have heard the learned counsel for the parties and gone through the record.
8. It is an admitted fact that respondents had been indulging in trading of the shares as respondents in their complaint have stated that they are regularly transacting the transactions through the petitioner.
9. Thus, the short question which arise for consideration in the present case is as to whether respondents are ‘consumers’ or not as per Section 2(1)(d) of the Act.
10. Expression ‘consumer’ has been defined in Section 2 (1) (d) of the Act, which reads as under;
“d “Consumer” means any person who,—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
Explanation—— For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.
11. Respondents have nowhere pleaded in their complaint that they are doing the share trading business for self-employment nor it has been pleaded that the services provided by the petitioner are being availed exclusively for the purpose of earning their livelihood by means of self-employment. It is well settled that the dispute between the parties relating to commercial purposes are excluded under the Act.
12. This Commission in Vijay Kumar Vs. Indusind Bank, II (2012) CPJ 181 (NC) has held;
“Since, petitioner has been trading regularly in the shares which is a commercial transaction and for which he has also availed the “over draft facility” from the respondent, as such he would not be a consumer as per Section 2 (1) (d) (ii) of the Act. Moreover, regular trading in the purchase and sale of the shares is a commercial transaction and the only motive is to earn profit. Thus, this activity is purely commercial one and is not covered under the Act”.
13. Since, respondents are trading regularly in the share business which is commercial activity, under these circumstances, respondents would not fall under the definition of ‘consumer’ as per the Act. Moreover, regular trading in the sale and purchase of shares is a purely commercial activity and the only motive is to earn profits. Therefore, this activity being purely commercial one, is not covered under the provisions of the Act.
14. Accordingly, we hold that since respondents are not the ‘consumers’ as per provisions of the Act, the State Commission committed grave error in allowing their complaint. Consequently, we allow the present revision petition and set aside the impugned order passed by the State Commission and restore the order of the District Forum. With the result, the complaint filed by the respondents before the District Forum shall stand dismissed.
15. With these observations, the present revision petition stand disposed of.
16. No order as to cost.
…………………………………….
(V.B. GUPTA)
PRESIDING MEMBER
……………………………………………
(REKHA GUPTA)
Sg. MEMBER
DOT: Consumer Forums are competent to deal with the disputes involving Telecom Cos
The Supreme Court in 2009, in the matter of General Manager, Telecom V. M Krishnan, involving BSNL as a party, had ended the jurisdiction of consumer courts to entertain disputes relating to the telecom service provider. But on 04th February 2014, Department of Telecommunication (DOT) issues a memorandum stating: “The District Consumer Forums are competent to deal with the disputes between individual telecom consumers and telecom service providers”.
It further stated: “Since DoT was also the telegraph authority, reference was made by Hon’ble Supreme Court to the provision of section 7B. However, powers of the telegraph authority have neither been vested nor are available to private telecom service providers and BSNL. Therefore, recourse to section 7B in case of disputes between consumers and private service providers and BSNL would not be available.”
At present, consumers have to follow a cumbersome process to resolve disputes with telecom firms. Though, complaints should be handled as per the guidelines issued by the Telecom Regulatory Authority of India (TRAI), the process remains largely inclined towards the service provider. Therefore, it has been protested since Supreme Court Judgment in 2009, which barred Consumer Forums/Courts jurisidciton.
DoT has sent this position before department of consumer affairs, chief secretaries and administrators of state and union territories for taking up the matter with various consumer courts.
Read More @ http://articles.economictimes.indiatimes.com/2014-02-04/news/47005017_1_telecom-disputes-indian-telegraph-act-telegraph-authority
Consumer Protection Act 1986: Chapter 1
CHAPTER I PRELIMINARY
Section 1. Short title extent, commencement and application.
(1) This Act may be called the Consumer Protection Act, 1986.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall come into force on such date as the Central Government may, by notification, appoint and different dates may be appointed for different States and for different provisions of this Act.
(4) Save as otherwise expressly provided by the Central Government by notification, this Act shall apply to all goods and services.
Section 2. Definitions.
(1) In this Act, unless the context otherwise requires,–
(a) “appropriate laboratory” means a laboratory or organisation–
(i) recognised by the Central Government;
(ii) recognised by a State Government, subject to such guidelines as may be prescribed by the Central Government in this behalf; or
(iii) any such laboratory or organisation established by or under any law for the time being in force, which is maintained, financed or aided by the Central Government or a State Government for carrying out analysis or test of any goods with a view to determining whether such goods suffer from any defect;
(aa) “branch office” means–
(i) any establishment described as a branch by the opposite party; or
(ii) any establishment carring on either the same or substantially the same activity as that carried on by the head office of the establishment;
(b) “complainant” means–
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or
(iii) the Central Government or any State Government, who or which makes a complaint;
(iv) one or more consumers, where there are numerous consumers having the same interest;
(c) “complaint” means any allegation in writing made by a complainant that–
(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader;
(ii) the goods bought by him or agreed to be bought by him] suffer from one or more defects;
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;
(iv) a trader or service provider, as the case may be, has charged for the goods or for the service mentioned in the complaint a price in excess of the price –
(a) fixed by or under any law for the time being in force
(b) displayed on the goods or any package containing such goods ;
(c) displayed on the price list exhibited by him by or under any law for the time being in force;
(d) agreed between the parties;
(v) goods which will be hazardous to life and safety when used or being offered for sale to the public,–
(A) in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force;
(B) if the trader could have known with due diligence that the goods so offered are unsafe to the public;
(vi) services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety;”;
(d) “consumer” means any person who,–
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and part by promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.
Explanation.–
For the purposes of sub-clause (i), “commercial purpose” does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(e) “consumer dispute” means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint.
(f) “defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods;
(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;
(h) “District Forum” means a Consumer Dispute Redressal Forum estalished under clause (a) of section 9;
(i) “goods” means goods as defined in the Sale of Goods Act, 1930 (3 of 1930);
(j) “manufacturer” means a person who —
(i) makes or manufactures any goods or part thereof; or
(ii) does not make or manufacture any goods but assembles parts thereof made or manufactured by others; or
(iii) puts or causes to be put his own mark on any goods made or manufactured by any other manufacturer and claims such goods to be goods made or manufactured by himself.
Explanation.–
Where a manufacturer despatches any goods or part thereof to any branch office maintained by him, such branch office shall not be deemed to be the manufacturer even though the parts so despatched to it are assembled at such branch office and are sold or distributed from such branch office;
(jj) “member” includes the President and a member of the National Commission or a State Commission or a District Forum, as the case may be;
(k) “National Commission” means the National Consumer Disputes Redressal Commission established under clause (c) of section 9;
(l) “notification” means a notification published in the Official Gazette;
(m) “person” includes,– (i) a firm whether registered or not; (ii) a Hindu undivided family; (iii) a co-operative society; (iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not;
(n) “prescribed” means prescribed by rules made by the State Government, or as the case may be, by the Central Government under this Act;
(nn)“regulation” means the regulations made by the National Commission under this Act;
(nnn) “restrictive trade practice” means a trade practice which tends to bring about manipulation of price or conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include—
(a) delay beyond the period agreed to by a trader in supply of such goods or in providing the services which has led or is likely to lead to rise in the price;
(b) any trade practice which requires a consumer to buy, hire or avail of any goods or, as the case may be, services as condition precedent to buying, hiring or availing of other goods or services;
(o) “service” means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
(oo) “spurious goods and services” mean such goods and services which are claimed to be genuine but they are actually not so;
(p) “State Commission” means a Consumer Disputes Redressal Commission established in a State under clause (b) of section 9;
(q) “trader” in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof;
(r) “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:-
(1) the practice of making any statement, whether orally or in writing or by visible representation which,-
(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods; (iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof: Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;
(viii) makes to the public a representation in a form that purports to be–
(i) a warranty or guarantee of a product or of any goods or services; or
(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;
(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;
(x) gives false or misleading facts disparaging goods, services or trade of another person.
Explanation.– For the purposes of clause
(1), a statement that is–
(a) expressed on an article offered or displayed for sale, or on its wrapper or container; or
(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or
(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained;
(2) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement. Explanation.– For the purposes of clause (2), “bargaining price” means–
(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or
(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;
(3) permits–
(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it it is fully or partly covered by the amount charged in the transaction as a whole;
(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;
(3A) withholding from the participants of any scheme offering gifts, prizes or other items free of charge, on its closure the information about final results of the scheme.
Explanation. — For the purposes of this sub-clause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time, published, prominently in the same newspapers in which the scheme was originally advertised;
(4) permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods;
(5) permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or services.
(6) manufacture of spurious goods or offering such goods for sale or adopts deceptive practices in the provision of services.
(2) Any reference in this Act to any other Act or provision thereof which is not in force in any area to which this Act applies shall be construed to have a reference to the corresponding Act or provision thereof in force in such area.
Section 3. Act not in derogation of any other law.
The provisions 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.
SpeakAsia fraud mastermind arrested from Bangalore
Six days after arresting his younger brother, the Mumbai EOW and Delhi police in a joint operation nabbed SpeakAsia mastermind promoter, Ram Niwas Pal, from Bangalore on Monday evening. Pal is considered to be number two in the SpeakAsia fraud masterminds after wanted accused Manoj Kumar Sharma.
Pal, 41, is accused of amassing more than Rs 300 crore earned fraudulently in the erstwhile SpeakAsia case. “Our team was in touch with the Delhi police and we learnt that Pal was in Bangalore. A trap was laid and we arrested Pal at time when he was trying to set up his base in Bangalore for another ponzy scheme,” said Rajvardhan Sinha, additional commissioner of police, EOW. The Delhi police had on November 26 arrested Pal’s younger brother, Ram Sumiran, in Dehradun.
“Pal was in the air force but was deserted after a court martial. Later, he came in touch with some people who operate ponzy schems and started his own ‘high returns scheme’ in 2003,” added Sinha. Pal is the master planner of the ponzi scheme which left over 24 lakh investors poorer by over Rs 2,276 crore,”
more @ http://timesofindia.indiatimes.com/city/mumbai/SpeakAsia-fraud-mastermind-held-in-Bangalore/articleshow/26752712.cms
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