Law of Torts - II : Previous Year Questions (2013)

PART – A

Q1. Give one example, when a person is not a consumer.

Ans. Persons obtaining goods for resale or commercial purposes, are excluded from the definition of consumer.

Exception (Self-Employment): If a person buys a car to use it as a taxi which they drive themselves to earn a living, they are a consumer. If they buy a fleet of 50 taxis to start a company, they are not.

Q2. What do you understand by the "Deficiency" in service under Consumer Protection Act, 1986 [CPA, 2019 in present context]?

Ans. According to Section 2(11) of the CPA, 2019, Deficiency means any fault or imperfection or inadequacy in the quality, nature, or 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 and includes: -

1. Any act of negligence or omission or commission by such person which causes loss or injury to the consumer.
2. Deliberate withholding of relevant information by such person to the consumer.

Q3. What do you understand by the expression "Unfair Trade Practice"?

Ans. It refers to the use of various deceptive, fraudulent, or unethical methods to obtain business. Unfair business practices include misrepresentation, false advertising, tied/tie-in selling, deceptive pricing and non-compliance with manufacturing standards. Such acts are considered unlawful by statute through the consumer protection laws.

Q4. Explain two objects of the Central Council under the Consumer Protection Act, 1986. [CPA, 2019 in present context].

Ans. The objective of the central council is to render advice on promotion and protection of the consumers’ rights which have been listed in the clause 9 of Section 2, of CPA 2019. The role of the central council is primarily advisory with regards to promotion and protection of consumers’ rights and interests.

Q5. What do you understand by the term "Public Interest Litigation"?

Ans. Public Interest Litigation (PIL) refers to legal action initiated in a court of law for the enforcement of the public interest or general welfare, rather than the private interest of an individual. Unlike traditional litigation, where only the aggrieved party can file a case, a PIL allows any public-spirited individual or organization to seek justice for a marginalized group or a community that cannot access the legal system themselves (due to poverty, ignorance, or disability). It is a powerful tool used to address issues like environmental pollution, human rights violations, and government accountability.

Q6. Who is complainant?

Ans. According to Section 2(5) of the CPA, 2019, Complainant means a consumer and includes any voluntary consumer association registered under any law for the time being in force, or the central government or any state government or one or more consumers, where there are numerous consumers having the same interest or in case of death of a consumer, his legal heir or legal representative, or consumer being a minor, his parents or legal guardian in respect of commodities or services rendered to them.

Q7. What is meant by consumerism?

Ans. Consumerism is the socio-economic ideology that encourages the acquisition of goods and services in ever-increasing amounts. It suggests that a person's standard of living, and their happiness, is directly proportional to their consumption.

Q8. What are consumer goods?

Ans. According to Section 2(21) of the CPA, 2019, Goods means every kind of movable property and includes “food” as defined in section 3(1)(j) of the Food Safety and Standard Act, 2006.

Q9. What exactly is the degree of control a doctor has over his patient?

Ans. The doctor exercises professional and clinical control over the choice of treatment and diagnosis based on their expertise, but this is strictly subject to the patient’s informed consent and the duty to provide a reasonable standard of care as prescribed under the law. The doctor does not have "ownership" or absolute control over the patient.

Q10.  What do you understand by 'Judicial Review'?

Ans. Judicial Review is the power of the judiciary to examine the actions of the legislative, executive, and administrative arms of government to ensure they align with the constitution.

PART – B

Q11. Discuss when a person is not a consumer.

Ans. Under the CPA 2019, the definition of a consumer is strictly tied to the concepts of consideration (payment) and purpose. A person is excluded from the definition of a "consumer" if they fall into any of the following categories:

1. Persons Obtaining Goods or Services Free of Charge

The bedrock of the consumer-provider relationship is Consideration. If you receive a product as a gift or avail of a service without any payment (current or promised), you are not a consumer.

Example: A patient treated for free in a charitable hospital where no one is charged cannot sue under the CPA (though they may have remedies under Law of Torts for negligence).

2. Persons Obtaining Goods for Resale or Commercial Purposes

The Act is designed to protect the "end-user." If a person buys goods to sell them again or to use them in a large-scale profit-making activity, they are considered a commercial entity, not a consumer.

Exception (Self-Employment): If a person buys a car to use it as a taxi which they drive themselves to earn a living, they are a consumer. If they buy a fleet of 50 taxis to start a company, they are not.

3. Persons Availing Services under a "Contract of Service"

There is a fine legal distinction between a contract for services and a contract of service:

• Contract for Services: (Consumer Category) You hire a professional (like a doctor or a plumber) to do a job.
• Contract of Service: (Excluded) This refers to a master-servant or employer-employee relationship. An employee cannot sue their employer under the CPA for issues related to their employment.

Relevant Case Laws:

1. Franchise Holder is not a Consumer - In The General Manager, Madras Telephones v. R. Kannan, it was held that a franchise holder is an agent of the principal, not a consumer.
2. Purchase Made for Commercial Purpose, the Complainant was not a Consumer -  In Godrej Computers v. International Data Management Ltd., the purchase of a computer for commercial use disqualified the buyer from being a consumer. Similarly, photocopiers or electronic typewriters bought for business use fall outside the CPA’s protection.
3. Student is not a Consumer - In Chairman, Board of Examination, Madras v. Mohidin Abdul Quadin, the board performing a statutory duty (conducting exams) was not seen as "rendering a service" for a consumer.
4. Teachers Employed in Govt. Aided School/College are not Consumer - In Principal, RSM Inter College v. Smt. Rekha, teachers in govt-aided schools were not considered consumers in the context of their employment/service conditions.

Q12. What do you understand by "Class action"?

Ans. Class Action (also known as a representative standing) is a procedural device that allows one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group, or "class," of people who have suffered similar legal injuries. Under the Consumer Protection Act (CPA), 2019, this concept is central to ensuring that justice is accessible even when individual claims might be too small to pursue independently.

The 2019 Act significantly strengthened class action provisions through the following:

1. The Central Consumer Protection Authority (CCPA): This is a powerful regulatory body established to protect the rights of consumers as a class. It has the power to:
   • Initiate class action legal proceedings.
   • Order the recall of products.
   • Order the reimbursement of the price of goods/services to a class of consumers.
2. Section 17 & 35: These sections allow for complaints to be filed where there are numerous consumers having the same interest.

Significance of Class Action:

It empowers individuals who cannot afford expensive litigation for a small claim, and holds large corporations accountable. While one Rs.50 refund might not bother a company, a class action for 100,000 such refunds (amounting to Rs.50 lakh) forces a change in behaviour. It prevents inconsistent judgments from different courts on the same issue.

Q13. Explain the need and reasons for the development of consumerism in India.

Ans. Consumerism is the socio-economic ideology that encourages the acquisition of goods and services in ever-increasing amounts. It suggests that a person's standard of living, and their happiness, is directly proportional to their consumption.

The concept of Consumerism in India is a fascinating double-edged sword. While it fuels one of the world's fastest-growing economies, it also creates a complex web of social and environmental challenges. In the context of the Law of Torts and the Consumer Protection Act (CPA), 2019, consumerism isn't just about buying; it’s about the shift of power from the seller (Caveat Emptor - Let the buyer beware) to the consumer (Caveat Venditor - Let the seller beware).

Need and reasons for the development of consumerism in India:

India presents a unique challenge for consumer protection. Unlike smaller, more homogenous nations, India’s market is vast and fragmented.

1. Protection Against Market Malpractices - The primary driver for consumerism was the need to shield individuals from unfair trade practices. Before the movement gained momentum, consumers frequently faced adulteration, particularly in food grains and oils; black marketing, artificial scarcity created to hike prices; and substandard goods, Selling poor quality products at premium rates.
2. Information Asymmetry - Modern markets are complex. Consumers often lack the technical knowledge to evaluate sophisticated electronic goods, pharmaceuticals, or financial services. Consumerism developed to bridge this gap, ensuring that the "Right to be Informed" is upheld through mandatory labelling and honest advertising.
3. Shift from 'Caveat Emptor' to 'Caveat Venditor' - For decades, the prevailing logic was Caveat Emptor (Let the buyer beware). As the economy liberalized in the 1990s, this shifted toward Caveat Venditor (Let the seller beware). Consumerism grew to ensure that businesses take responsibility for the safety and performance of their products.
4. Impact of Globalization and Competition - The entry of multinational corporations (MNCs) increased the variety of goods available. This heightened competition meant that consumers needed a way to compare quality, and organized bodies were required to handle grievances against large, powerful corporations.
5. Legal Empowerment (The CPA 1986 & 2019) - The institutionalization of the Consumer Protection Act provided a formal framework for consumerism. It helped by establishing District, State, and National Commissions for speedy redressal, and Consumer Awareness; government-led campaigns that educated the public on their rights.

Consumerism in India is a response to the imbalance of power between organized producers and unorganized consumers. It seeks to ensure that "The Consumer is King" is a reality rather than just a marketing slogan.

Q14. What do you understand by 'Administrative remedies’?

Ans. Under the Consumer Protection Act (CPA), 2019, administrative remedies refer to non-judicial, regulatory actions taken by specially established authorities to protect consumer interests, prevent unfair trade practices, and enforce compliance, primarily through executive intervention rather than traditional courtroom litigation.

The most significant administrative remedy introduced by the CPA 2019 is the establishment of the Central Consumer Protection Authority (CCPA).

Key Aspects of Administrative Remedies:

1. Role of the CCPA: The CCPA acts as a regulator to promote, protect, and enforce consumer rights as a class. It can take suo motu action (on its own motion) against violations.
2. Investigation and Inquiry: The CCPA has an Investigation Wing, headed by a Director-General, empowered to conduct inquiries or investigations into consumer rights violations, unfair trade practices, and misleading advertisements.
3. Proactive Orders: Unlike judicial remedies that require a formal lawsuit, the CCPA can directly issue orders to recall hazardous goods or withdraw dangerous services, order reimbursement of prices paid by consumers, and discontinue unfair trade practices and ban misleading advertisements.
4. Penalties and Class Action: The CCPA can impose penalties on manufacturers, endorsers, and publishers of misleading advertisements. It can also file class-action complaints before Consumer Commissions on behalf of consumers.
5. E-commerce Regulations: The CCPA enforces specific e-commerce rules, requiring online platforms to disclose seller details, return/refund policies, and maintain a grievance officer.

Administrative remedies provide a proactive, regulatory approach to consumer protection, enabling swift action against offenders to prevent mass consumer harm, as opposed to the reactive, dispute-settling nature of consumer commissions.

PART – C

Q15. Explain the constitution and procedure of State Consumer Protection Council.

Ans. State Consumer Protection Council as under CPA, 2019:

Section 6(1): Every State Government shall, by notification, establish with effect from such date as it may specify in such notification, a State Consumer Protection Council for such State to be known as the State Council.

Composition of the State Consumer Protection Council:

Section 6(2) provides that the State Council shall be an advisory council and consist of the following members, namely: —

1. the Minister-in-charge of Consumer Affairs in the State Government who shall be the Chairperson;
2. such number of other official or non-official members representing such interests as may be prescribed;
3. such number of other official or non-official members, not exceeding ten, as may be nominated by the Central Government.

Meeting of State Council:

• Section 6(3): The State Council shall meet as and when necessary but not less than two meetings shall be held every year.
• Section 6(4): The State Council shall meet at such time and place as the Chairperson may think fit and shall observe such procedure in regard to the transaction of its business, as may be prescribed.

Objective of the State Consumer Protection Council:

Section 7: The objectives of every State Council shall be to render advice on promotion and protection of consumer rights under this Act within the State.  It focuses on protecting consumers against hazardous goods, unfair trade practices, and ensuring access to information and redressal mechanisms at the state level.

Key Objectives:

1. Protection of Rights: To protect consumer rights, including the right to safety, information, choice, and redressal.
2. Advisory Role: To advise the State Government on policies promoting and protecting consumer rights within their jurisdiction.
3. Ensuring Quality/Safety: To protect consumers from the marketing of hazardous goods and services.
4. Unfair Trade Practices: To curb unfair and deceptive trade practices. 

These objectives are designed to align state-level actions with the overall goals of the central Consumer Protection Act, focusing on consumer education and empowerment.

Q16. Explain the needs of the Consumer Protection Act, 1986? [CPA, 2019 in present context]

Ans. The Consumer Protection Act (CPA), 2019, replaced the three-decade-old 1986 Act to better address the complexities of the modern digital age. While the 1986 Act laid the foundation, the 2019 version was necessary to tackle the rise of e-commerce, telemarketing, and sophisticated deceptive branding.

Need for the CPA, 2019

The "Needs" represent the market failures and vulnerabilities that necessitated government intervention. The following reasons led to need for a new legislation:

1. Price Disparity - Consumers often face price gouging (excessively high prices) or arbitrary pricing for essential services where competition is low.
2. Monopolies - In sectors where the public or specific private entities hold a monopoly, consumers lack the power of "choice," leading to poor service quality.
3. Supply Manipulation - Creating artificial shortages (short supply) to hike prices or force consumers to buy sub-standard alternatives.
4. Deceptive Marketing - Goods are often advertised with benefits or usages they do not possess.
5. Quality Misrepresentation - Refurbishing second-hand goods and selling them as "brand new" is a common fraud the Act seeks to penalize.
6. Incomplete Disclosure: Withholding critical information about a product (like side effects or origin) prevents "informed consent."
7. Lack of Organization: Unlike businesses, consumers are scattered. The Act provides a collective voice through Class Action Suits.
8. Awareness Gap: A significant portion of the population remains unaware of their rights or the technicalities of the products they consume.

Necessities for CPA, 2019

The 2019 Act wasn't just an update; it was a structural overhaul. Here is how it addresses modern necessities:

Objectives of CPA, 2019

The primary goal of the CPA is to shift the market philosophy from Caveat Emptor (Let the buyer beware) to Caveat Venditor (Let the seller beware).

A. Comprehensive Protection of Rights

The Act is designed to protect the six fundamental consumer rights:

1. Right to Safety against hazardous goods.
2. Right to be Informed about quality, quantity, and price.
3. Right to Choose from a variety of goods at competitive prices.
4. Right to be Heard in appropriate forums.
5. Right to Seek Redressal against unfair trade practices.
6. Right to Consumer Education.

B. Effective and Speedy Redressal

The Act establishes a three-tier quasi-judicial mechanism (District, State, and National Commissions). By ensuring these forums are headed by individuals with judicial experience, the Act ensures that decisions are legally sound.

C. Market Regulation and Monitoring

The Act acts as a deterrent against the "future market" manipulation of essential commodities. The act also monitors the quality of products in the market. By promoting certification schemes (like ISI or AGMARK), the Act ensures that the production of goods meets national safety and quality benchmarks.

Difference between CPA, 1986 and CPA, 2019

Note: - As per revised rules of 2021, Pecuniary Jurisdiction is as follows:

1. District Commission – Up to Rs.50 Lakh
2. State Commission – Rs.50 Lakh to Rs.2 Crore
3. National Commission – Above Rs.2 Crore

Q17. Discuss the jurisdiction of National Commission under the Consumer Protection Act, 1986. [CPA, 2019 in present context]

Ans. National Commission as under CPA, 2019:

Establishment (Section 53):

The central government should by notification, establish a National Consumer Dispute Redressal Commission, to be known as the National Commission.

The National Commission shall ordinarily function at the National Capital Region and perform its functions at such other places as the central government may in consultation with the National Commission, at such places it deems fit.

Composition (Section 54):

The National Commission shall consist of: -

1. A president.
2. Members not less than 4 and not more than such number as may be prescribed.

Qualification and Appointment of the President of National Commission [Section 55(1)]:

A person shall be qualified for appointment as President of the National Commission, if he: -

1. Is, or has been a judge the Supreme Court; or
2. Is, or has been, Chief Justice of High Court.

The President of the National Commission shall be appointed by the Central Government on the recommendation of a search-cum-selection committee, consisting of the following:

1. Chief Justice of India / any judge of the Supreme Court nominated by him. (Chairperson).
2. The outgoing President of the National Commission. (Member).
3. Secretary to the Government of India, Minister of consumer affairs, food and public distribution. (Member).
4. Secretary to the Government of India, Ministry of Commerce (Department of Promotion of Industry and Internal Trade) – Member.

Qualification and Appointment of the Members:

A person shall not be qualified for appointment as a member, unless he: -

1. Is or has been a judge of High Court; or
2. Has, for a combined period of 10 years, been a DJ/ADJ; or
3. Is a person of ability, integrity, and standing and having special knowledge of, and professional experience of not less than 25 years, in economics, business, commerce, law, finance, accountancy, etc. which is useful to the National Commission.

Term of Office [Section 55(2)]:

President – for a term of 4 years or 70 years of age, whichever is earlier.

Members – 4 years or 65 years of age, whichever is earlier.

Jurisdiction [Section 58(1)]:

1. Territorial Jurisdiction – The territorial jurisdiction of the National Commission is of whole India.
2. Appellate Jurisdiction – The National Commission has jurisdiction to entertain appeals against the order of any State Commission. The appeal may be made within 30 days from the date of the order of the State Commission. However, the National Commission may entertain an appeal filed after the expiry of 30 days, if it is satisfied that there was sufficient cause for not filing an appeal within 30 days.
3. Pecuniary Jurisdiction –

According to,

CPA, 2019: above 10cr.

CPA, 1986: above 1cr.

Revised Rules, 2021 – above 2cr.

Appointing Authority:

The President is appointed by the Central Government after consultation with the Chief Justice of India.

The appointment of other members of the National Commission is made by the Central Government on the recommendation of the selection committee, consisting of the following: -

1. A person who is a judge of the Supreme Court, to be nominated by the CJI. (Chairman).
2. The secretary in department of legal affairs in the Government of India, (Member).
3. The secretary of department dealing with consumer office in the Government of India.

Q18. What are the duties and obligations of a doctor under the Consumer Protection Act, 1986? [CPA, 2019 in present context]

Ans. The apex court has pronounced the landmark judgement, “Indian Medical Association v. V.P. Shantha” with special reference to medical services under the CPA. Where medical services are covered under the definition of service, doctors and hospitals fall within the scope of summary jurisdiction of CPA for the grant of compensation and other relief provided by the act.

In this case, the apex court held that the person suffering any loss on account of any negligence or deficiency in such service includes rendering of consultation, diagnostics, and treatment, both medical and surgical. Professional men should possess certain degree of competence and they should exercise reasonable care in discharge of their duties. Medical practitioner doesn’t enjoy immunity and they can be sued in contract of tort on the ground that they have failed to exercise reasonable skill and care.

Components of Medical Negligence

There are 3 main components of medical negligence:

1. Existence of legal duty
2. Breach of legal duty
3. Damage caused by such breach of duty

1. Existence of legal duty – In any industry, professionals have a duty of care to uphold a certain level of care as determined by their specific field. Equally a healthcare professional is expected to meet a certain standard of care towards patients, where this standard will vary according to specific healthcare situation. Guidelines for the applicable standard of care in a given situation will take into account the medical professionals’ speciality, traditional medical practices and the skills and care that an average physician would provide in similar circumstances.
2. Breach of the legal duty – The next element of medical malpractice that needs to be proved in medical malpractice litigation is breach of legal duty. To prove that there was a doctors’ professional duty of care, we must establish that the doctor failed to exercise the standard of care or skill that would commonly be exhibited by a similar doctor in that situation. This takes into account what specialised knowledge a doctor in that situation would have. Typically, this requires expert testimony from another medical professional to establish that a standard of care was not met in your case.
3. Damage caused by such breach of duty – For a medical malpractice case to be successful, the personal injury will also have to prove that the victim was harmed by the medical negligence, leading to losses and expenses. For example: a doctor incorrectly diagnosing your condition could require you to seek additional medical treatment following the new issues caused by the mis-diagnosis, as well as any medical treatment for your original condition. If you have been negatively affected by the medical mal-practice, you are within your rights to fight to recover compensation in a medical mal-practice claim.

A medical professional or hospital shall be held liable for all actions against the patient where they have not taken proper standard of care and it has resulted in suffering on the part of the patient. The burden of proof shall lie on the complainant to prove the case of negligence. They have to first establish that there was a duty of care on part of the accused and that there was breach of such duty.

Remedies for Medical Negligence

Following are the remedies for Medical Negligence:

1. Medical council of India – An aggrieved party can file a complaint of negligence against their medical practitioner to the concerned state medical council, as they have the power to take action against the concerned doctor by cancelling or suspending their license. However, the Indian Medical Council Act does not give them the power to compensate the aggrieved party.

Note: - The Medical Council of India (MCI) has been replaced by the National Medical Commission (NMC) under the NMC Act, 2019.

2. A civil liability – An aggrieved party can approach the consumer court to file a case against the accused person or hospital. In Indian Medical Association v. V.P. Shantha, the honourable Supreme Court observed that the medical practitioners are covered under the CPA, and the medical services rendered by them should be treated as service under Section 2(42). Any matter in medical negligence on the part of the service provider will be considered as deficiency under Section 2(11).
3. Criminal liability – Under various provisions of IPC/BNS, any person who acts negligently that resulted in threat to human life or personal safety or result in death of a person, then the person shall be punished with imprisonment or fine, or both. However, the court observed that in a matter of negligence where a criminal case is being pursued, the element of men’s rea must be shown to exist.

Medical negligence causing death was previously under Section 304A of the IPC. Under the Bharatiya Nyaya Sanhita (BNS), it is now Section 106(1).

Section 106(1): Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.

Registered medical practitioner means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act.

Denial of Medical Services is a Violation of Human Rights

Parmanand Katara v. Union of India was one of the earliest and most landmark Supreme Court cases dealing specifically with medico-legal responsibilities and emergency medical treatment in India. In this case a public spirited person has filed a PIL under Article 32 of the Constitution. The honourable Supreme Court held that it is a right of citizen and also an obligation of the state to preserve life, and doctors at hospital are therefore required to provide medical assistance to save life. The judgement was the first initiative taken by the Supreme Court to protect the rights of the citizens as per Article 21.

In the case of “Consumer Education and Research Centre v. UOI”, the Supreme Court held that timely medical aid is an integral part of the right of life as per Article 21. Social Justice, which is a device to ensure life to be meaningful with human dignity, required for the state to provide to workmen, facilities and opportunities to reach a minimum standard of health, economic security, and civilised living.

The Supreme Court has held that denial of emergency medical care is a violation of Article 21. Hence, it is the fundamental right of the citizen to be provided with emergency services without any condition.