Law of Torts - II : Previous Year Questions (2017)

PART - A

Q1. What do you understand by "Deficiency"?

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.

Q2. Define "consumer dispute".

Ans. A consumer dispute is a disagreement between a buyer and a seller/service provider, occurring when a person against whom a complaint is made denies or disputes the allegations, such as defective goods, deficient services, overcharging, or unfair trade practices. It arises when consumer rights are violated, necessitating redressal through consumer courts or arbitration. [In CPA, 2019, Section 2(8) defines consumer dispute].

Q3. What do you mean by "prescribed"?

Ans. Prescribed means prescribed by rules made under any act. It describes something decided beforehand by an authority which must be followed.

Q4. The Consumer Protection Act 1986 enacted on which date? [CPA, 2019 in present context]

Ans. CPA, 2019, was enacted on August 09, 2019. It came into effect on July 20, 2020.

Q5. Give two examples who is not a consumer.

Ans. Persons obtaining goods or services free of charge; Persons obtaining goods for resale/commercial purposes.

Q6. What is the jurisdiction of district forum? [District Commission (CPA, 2019)]

Ans. Section 34 of the CPA, 2019, states jurisdiction of the District Commission:

1. Territorial Jurisdiction – Every District Commission has definite geographical limits within which it can exercise its jurisdiction. A case is supposed to fall within such territory when at the time of the institution of the complaint:

1. The cause of action wholly or partially arises in that area.
2. The complainant resides or personally works for gain.
3. The opposite party resides or carry on business.

2. Appellate Jurisdiction – District Forum is the lowest consumer court; thus it does not have any appellate jurisdiction.
3. Pecuniary Jurisdiction –
   • As per CPA, 1986: up to 20 lakhs.
   • As per CPA, 2019: up to 1cr.
   • Revised in 2021: up to 50 lakhs.

Q7. What is ex-parte order?

Ans. An ex-parte order is one passed without hearing one of the parties, usually because that party failed to appear in court/commission despite proper notice. This is generally done to avoid unnecessary delays and ensure swift justice.

Q8. Define "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. Write main object of the State Council.

Ans. According to Section 7 of the CPA, 2019, 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.

Q10. What is final order?

Ans. A "final order" under the Consumer Protection Act (CPA), 2019, is a binding decision issued by the District, State, or National Commission that concludes a consumer dispute, settling the rights of the parties. Under Section 68, these orders are final if not appealed within the specified limitation period.

PART – B

Q11. What do you understand by term "appropriate laboratory"?

Ans. According to Section 2(2) of the CPA, 2019, "appropriate laboratory" means a laboratory or an organisation -

1. recognised by the Central Government; or
2. recognised by a State Government, subject to such guidelines as may be issued by the Central Government in this behalf; or
3. 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.

Functional Role in Consumer Disputes

The primary role of these laboratories is to provide expert evidence during legal proceedings:

1. Sample Referral: If a complaint alleges a defect that cannot be determined by simple visual inspection, the District Commission (under Section 38) has the power to obtain a sample of the goods, seal it, and refer it to an appropriate laboratory.
2. Time-bound Reporting: The laboratory is mandated to report its findings within 45 days (or an extended period granted by the Commission) to ensure timely resolution of the dispute.
3. Cost of Testing: The complainant is typically required to deposit the necessary fees for this testing into the Commission’s account before the analysis begins.

Admissibility of Report

The findings of the appropriate laboratory serve as a critical evidence base for the Consumer Commission's final order. If any party disputes the correctness of the report, they are given a reasonable opportunity to submit written objections and be heard before the case is decided.

Q12. What is the composition of district forum? [District Commission (CPA, 2019)]

Ans. Composition of District Commission as under CPA, 2019:

Establishment and Composition (Section 28):

1. The State Government shall by notification, establish a District Consumer Disputes Redressal Commission, to be known as the District Commission, in each district of the state: Provided that the State Government may, if it deems fit, establish more than one District Commission in a district.
2. Each District Commission shall consist of –

1. a President; and
2. not less than two and not more than such number of members as ay be prescribed, in consultation with the Central Government.

The Allahabad High Court in Kailash Chand Gupta v. State Commission (UP, Lucknow) has held that Section 10 of the CPA 1986 does not require either expressly or by necessary implication that member of a District Forum must be from the same district.

Q13. What are main objects 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.

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.

Q14. What are the remedies available to a complainant under section 14 of the Consumer Protection Act, 1986? Discuss. [CPA, 2019 in present context]

Ans. Section 39 of the CPA, 2019 states that:

Where the District Commission is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services or any unfair trade practices, or claims for compensation under product liability are proved, it shall issue an order to the opposite party directing him to do one or more of the following, namely: -

1. to remove the defect pointed out by the appropriate laboratory from the goods in question;
2. to replace the goods with new goods of similar description which shall be free from any defect;
3. to return to the complainant the price, or, as the case may be, the charges paid by the complainant along with such interest on such price or charges as may be decided;
4. to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party:

Provided that the District Commission shall have the power to grant punitive damages in such circumstances as it deems fit;

5. to pay such amount as may be awarded by it as compensation in a product liability action under Chapter VI;
6. to remove the defects in goods or deficiencies in the services in question;
7. to discontinue the unfair trade practice or restrictive trade practice and not to repeat them;
8. not to offer the hazardous or unsafe goods for sale;
9. to withdraw the hazardous goods from being offered for sale;
10. to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature;
11. to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently:

Provided that the minimum amount of sum so payable shall not be less than twenty-five per cent. of the value of such defective goods sold or service provided, as the case may be, to such consumers;

12. to issue corrective advertisement to neutralise the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement;
13. to provide for adequate costs to parties; and
14. to cease and desist from issuing any misleading advertisement.

PART – C

Q15. Explain the concept of "Unfair trade practice" under the Consumer Protection Act, 1986. [CPA, 2019 in present context]

Ans. The term ‘Unfair Trade Practices’ is defined under Section 2(47) of the CPA, 2019.

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.

Unfair Trade Practices may be categorised under:

1. False representation
2. Bargain price
3. Non-compliance of prescribed standard
4. Falsification of trademark
5. Unsafe and hazardous goods

1. False Representation:

The practice of making any written statement or representation which –

1. Falsely suggest that goods are of a particular standard, quality, quantity, grade, composition and model.
2. Falsely suggest any rebuilt, second-hand, renovated, re-conditioned, or old goods as new.
3. Represents that the goods or services have sponsorship, approval, or affiliation which such goods or services do not have.
4. Makes a false or misleading representation concerning the need for or usefulness of any goods or services.
5. Gives to the public any warranty or guarantee of the performance, efficiency, or length of time of a product that is not based on an adequate or proper test.

2. Bargain Price:

Where an advertisement is published in a newspaper, whereby goods/services are offered at a bargain price, when in fact there is no intention that the same may be offered at that price for a reasonable period of time. It shall amount to an unfair trade practice.

3. Non-compliance of prescribed standard:

Any sale/supply of goods used by the consumer, having reason to believe that goods do not comply with the standard prescribed by some competent authority in relation to their performance, composition, content, design, packaging, as are necessary to prevent the risk of injury to the person using such goods shall amount to an unfair trade practice.

4. Falsification of Trademark:

Falsely applying of a trademark is said: -

1. When a person deceptively applies the falsified trademark to goods/services or any packet which contains goods.
2. When a person uses that package which has a false trademark or deceptively similar trademark of the proprietor for the purpose of packaging or wrapping of goods other than the real goods of the trademark.

5. Unsafe and Hazardous Product:

The term hazardous goods have not been defined in the act. The dictionary meaning of the term is dangerous or risky. However, the term is used in context of goods only. A person can make a complaint of he is not informed about the hazardous nature of the goods, but the same is not true in case of hazardous services. The rationale behind the provision is to ensure physical safety of the consumer. The law seeks to ensure that those responsible for bringing goods to the market, in particular supplier, importer, or retailer and the same should ensure that while in care, these goods are not rendered unsafe through improper handling or care.

Relevant Case Laws:

1. Maruti Suzuki India Ltd. v. Rajiv Kumar Loomba (2009)

This is a landmark consumer protection case involving "unfair trade practices" under the Consumer Protection Act, 1986. It addresses whether a manufacturer can charge a consumer for equipment not provided under the guise of a "uniform pricing policy."

Facts of the Case:

The respondent (Loomba) purchased a Maruti car in Chandigarh. At the time, federal regulations required cars sold in the four major metros (Delhi, Mumbai, Kolkata, Chennai) to be fitted with catalytic converters to meet emission norms. This was not required in Chandigarh. The appellant (Maruti) charged the respondent the same price as metro customers, effectively charging an extra ₹7,000 for a catalytic converter that was not installed in his car. The District, State, and National Consumer Forums ruled in favour of the consumer, leading Maruti to appeal to the Supreme Court.

Ratio Decidendi (Reasoning of the Court):

The Court held that while forums usually don't interfere in price setting, they have full authority to intervene when a consumer is billed for a specific item not supplied. Charging for a feature not included in the vehicle is inherently deceptive and falls squarely under "unfair trade practices." Even if a uniform pricing policy existed, applying it in a way that forces a customer to pay for "nothing" is arbitrary and violates the principle of equity under Article 14.

Decision:

The Supreme Court dismissed the appeal. It upheld the lower consumer court's order directing Maruti Suzuki to refund the excess amount (₹7,000) to the consumer along with interest and costs. The Court clarified that manufacturers cannot use "policy" as a shield to justify charging for unrendered services or unsupplied goods.

2. Pepsi Co. Inc. v. Hindustan Coca Cola Ltd. (2003)

This case concerns the legality of comparative advertising and the thin line between "puffing" (extolling one’s own goods) and "disparagement" (denigrating a competitor's goods). It arose from a series of commercials released by Coca-Cola that allegedly mocked Pepsi’s brand.

Key Issues Involved: Trademark infringement (using "Pappi" for Pepsi), Copyright infringement (copying the Roller Coaster commercial/theme), and disparagement of Pepsi's product as inferior.

The court found that Coca-Cola’s commercial was a "literal imitation" of Pepsi’s original Roller Coaster commercial, including similar character dress and setting. The appeal was partly accepted. The court restrained Coca-Cola from airing the specific commercials that mimicked Pepsi’s theme and infringed on their copyright. The ruling established that comparative ads cannot be used to copy a competitor's original creative expression, upholding that "the entire theme of the advertisement and the sequence of events" cannot be stolen.

3. CCPA v. Rapido (Roppen Transportation Services Private Limited) (2025) [Misleading Advertisement]

Context: The Central Consumer Protection Authority (CCPA) investigated advertisements for "Guaranteed Auto" and "Auto in 5 min or get ₹50". The "₹50" was actually "Rapido Coins" (valid only for bike rides, expiring in 7 days), not cash, and the T&C disclaimer was in unreadable font.

Verdict: The CCPA imposed a ₹10 lakh penalty, finding that the company overstated its service capability while concealing qualifying conditions, which misled consumers into using the platform. The authority also directed the platform to ensure that any consumer who availed the offer of “auto in five minutes or get ₹50”, and did not receive the promised ₹50, shall get the amount in full without any further delay or condition.

4. Irshad Rashid Dand vs. Physics Wallah Private Limited & Anr. (2026) [Non-refund of Fees]

The complainant paid ₹35,000 for a NEET coaching course, but Physics Wallah failed to provide access to the classes. The commission deemed the retention of fees without providing services as an "unfair trade practice" and a "deficiency in service".

The court ordered a refund of the ₹35,000 fee, plus ₹50,000 as compensation for academic loss/mental agony and ₹10,000 for litigation costs (totaling ₹95,000). The ruling serves as a notable precedent in 2026 regarding the accountability of ed-tech platforms under consumer protection laws.

Q16. Discuss the territorial, pecuniary and appellate jurisdiction of the 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.

Q17. Define and discuss the word "consumer" and "service" under the Consumer Protection Act, 1986. Illustrate with cases. [CPA, 2019 in present context]

Ans. The Consumer Protection Act (CPA), 2019, is a milestone in Indian legislation designed to protect the interests of consumers in an increasingly complex marketplace. At its core, the Act aims to provide a fast-track grievance redressal mechanism. However, to benefit from this "shield," one must first qualify as a "Consumer."

Section 2(7) of the Act defines a consumer, but just as important is understanding who the law excludes. By drawing a line in the sand, the Act ensures it remains a tool for individual protection rather than a forum for resolving complex commercial or industrial disputes.

Who is a consumer?

A ‘consumer’ is an individual who consumes goods – manufactured by firms or created by nature (air, water, etc.) and services offered by government or firms – hospital, educational institutions, etc. Any individual who purchases products/services for his personal use and not for manufacturing or resale.  Thus, a consumer is a user of goods and services. The 2019 Act explicitly includes e-commerce transactions, teleshopping, and direct selling in the definition of a consumer; a major addition over the 1986 version.

Section 2(7) of the Act defines ‘consumer’ as ANY person who:

1. 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
2. hires or avails of any service 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 service other than the person who hires or avails of the services for consideration  paid or promised, or partly paid 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 service for any commercial purpose.

The 2019 Act explicitly includes e-commerce transactions, teleshopping, and direct selling in the definition of a consumer; a major addition over the 1986 version.

Beneficiary of Services is also a Consumer

When A hire services from B, may hire it for himself or for any other person. In such a case, the beneficiary (user) of these services is also a consumer.

Example – A takes his son ‘B’ to a doctor for B’s treatment. Here ‘A’ is hirer of services of the doctor and ‘B’ is beneficiary of these services. For the purpose of the act, both A and B are consumers. This is an exception to the rule of Privity of Contract.

Who is NOT a consumer?

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

To understand the nuances, we must look at how the courts have interpreted these exclusions.

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.
5. Sale of Immovable Property can’t be Subject Matter of Complaint under the CPA - In Ravin Bharti Land Development and Finance Pvt. Ltd. v. Punjab National Bank, it was established that the sale of immovable property (land/buildings) does not typically fall under the CPA, as these are governed by specific property laws (and now RERA). [Take note: - the construction service (the act of building the house) is definitely a service. This is why homebuyers can go to Consumer Courts against builders for delays, even with RERA in existence.]
6. Vehicles Possessed under a Hirer Purchase Agreement, Hirer Complainant would not be a Consumer - In Tata Motors Ltd. v. Sant Bahadur Singh, a person possessing a vehicle under a hire-purchase agreement (where ownership hasn't transferred) was found not to be a consumer in that specific context.
7. Complaint by Wife of a Govt. Servant, she is not a Consumer - In Manoranjan Tiwari v. State Govt. of Rajasthan, it was held that the wife of a government servant (complaining about his service conditions/benefits) does not qualify as a consumer.

One thing is plain and clear from the decided cases that what is important to decide is - Whether a particular good is used for commercial purposes or not. If it is used for commercial purpose(s), the buyer/user is not a consumer, and if it is not - the buyer/user is a consumer.

The Consumer Protection Act, 2019 (CPA 2019), serves as the primary legislation for protecting consumer interests in India, replacing the older 1986 Act to address the complexities of the modern marketplace. Central to its application is the concept of "service," which determines whether a person can seek redressal for "deficiency" before Consumer Commissions.

What is Service?

Section 2(42): Service is an intangible benefit availed by the consumer from the service provider which includes facilities relating to banking, financing, insurance, telecom, transport etc. Service does not include any free service. It should be in paid form.

Examples of services are:

1. Legal consultation is a service where a lawyer is a service provider.
2. A medical check-up is a service where a doctor is a service provider.
3. Internet facility is a service where a telecom company is a service provider.

What is deficiency?

According to section 2(11), deficiency is any shortcoming, fault, imperfection, or defect in features, quality, amount, nature, authenticity, capacity, standard which is obligatory to be maintained and regulated as per laws and statutes in function or any agreement signed by the seller, including any act of negligence, omission by the seller, which causes loss to the consumer.

When we talk about service under CPA, we take it as a regular transaction. Thus, the service rendered under the contract of personal service are specifically excluded from the deficiency of service.

The term ‘contract of personal service’ is not defined under the act. In common, it means a contract to render service in private capacity to individuals.

Example:

1. Where a landlord agrees to supply water to his tenant.
2. Where a servant enters into a contract with a master for employment.

Contract ‘of’ personal service and Contract ‘for’ personal service:

In contract of personal service, the service seeker can order or require what is to be done and how it should be done.

Example: like a master can tell his servant to bring goods from a particular place.

But in a contract for personal service, the service seeker can tell only what is to be done. How the work will be done is at the wish of the service provider.

In CPA, contract ‘for’ personal service is considered.

Essential Elements of Deficiency

To prove a deficiency in service, the following must be established:

1. Imperfection in Quality: The service provided falls below the standard prescribed by law or promised by the provider.
2. Inadequate Performance: Failure to deliver the service in the manner agreed upon (e.g., delays, technical glitches, or incomplete work).
3. Negligence/Omission: Acts of negligence or the deliberate withholding of relevant information that causes loss or injury to the consumer.

Examples of deficiency of services:

1. Inappropriate treatment done by a doctor leading to an increase in patient’s suffering is the deficiency in service.
2. A customer buys a ticket for an AC bus. But the AC of the bus does not work, which is a deficiency of service.

Relevant Case Laws:

1. Gurshinder Singh v. Shriram General Insurance Company Ltd. (2020) [Deficiency in Insurance Service]

In this case, the appellant had got his tractor insured with the respondent. Later, the tractor was stolen and an FIR was lodged on the same day. However, the claim was submitted to the respondent. It was rejected on the ground that intimation was given after a delay of 52 days. The appellant filed a consumer complaint before the District Consumer Forum. Furthermore, on appeal, the Supreme Court held that if there is a mere delay by a person in intimating the insurance company about the theft, this cannot be the ground to repudiate an insurance claim.

2. Bihar State Sugar Corporation Ltd. v. State Bank of India [Deficiency in Banking Service]

In this case, the cheque of the complainant corporation was wrongfully dishonoured despite having sufficient funds in its account. This resulted in complainants not being able to obtain insurance policy. His claim for accidental damages to his factory was rejected by the insurance company causing loss of more than Rs.25 lakhs to the complainant. It was held that there was deficiency in service of the part of bank and the commission awarded 5 lakh rupees by way of damages to the complainant.

3. N. Kunchi Babu v. A.P. Transco [Deficiency in Electricity Service]

In this case, electric wires were touching the balcony of complainant’s house. As a result of which, his minor daughter got electrocuted and became physically disabled. There was failure on the part of Electricity Supply Board to maintain minimum distance as per norms prescribed under the Electricity Act. Held, the deficiency in service was proved, hence complainant was entitled to compensation, cost, and also the medical expenses of his daughter.

4. Lucknow Development Authority v. M.K. Gupta (1994) [Deficiency in Service of House Construction]

In this Case, the complainant had deposited the prescribed amount to the opposite party (LDA) for taking possession of house and the opposite party issued possession later. Although the house was found incomplete, the house was occupied by someone else unauthorised. The complainant was awarded Rs. 3000 per month from the date of cheque of Rs. 22,85,070, to be able to take possession till the date of actual possession of house. The Supreme Court held that development authorities, when providing housing or allotment services, are "service providers" under the Consumer Protection Act.

The Act imposes strict liability on the manufacturer, distributors, suppliers and retailers for causing injurious harm by its defective products or services. Notwithstanding any contractual obligations and limitations of the liability, if a product or any of its components fails to comply with the necessary standards and therefore causing a defect in the product, shall make the manufacturer of the product directly liable for damages under the Act or the common law of negligence. Subsequently, the action can be brought for injury, death or any damages caused to a person or property under the Act due to a defect of the product. This means that there is no need for consumers to prove that the manufacturer was negligent for filing the suit against the manufacturer. The consumer only needs to prove that the defect in the product, the damage or injury was caused to the consumer by the product or service only.

Q18. Describe the civil and criminal liability arising out of medical negligence. With the help of case law.

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.

What Does Not Amount to Medical Negligence?

If a patient has suffered an injury, the doctor might not be held liable in case of error of judgement. He shall not be charged against any such actions. Even doctors are humans and hence, are prone to make mistakes and therefore, they shall be allowed some relief.

When Does the Liability Arise?

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.

Case: Jacob Mathew v. State of Punjab [Criminal Liability]

The patient, Jeevan Lal Sharma, was admitted to a hospital with breathing difficulties. When his condition worsened, the doctors arrived after a delay and connected an oxygen cylinder that turned out to be empty. No spare cylinders were available, and the patient passed away. The sons of the deceased filed an FIR alleging criminal negligence against the doctors and hospital management.

The core legal issue was whether the doctors could be held criminally liable for the death of the patient due to the non-availability of a functioning oxygen cylinder, or if such an act constitutes only a civil wrong.

The Supreme Court quashed the criminal proceedings against the doctors. It held that while the hospital might be liable for a civil suit (deficiency in service), the doctors did not meet the high threshold of "gross negligence" required for a criminal conviction.

The Supreme Court clarified that for a doctor to be prosecuted under criminal law, the degree of negligence must be "Gross." A simple lack of care or an error of judgment might suffice for a civil claim for compensation, but for a criminal charge, the doctor’s conduct must show a reckless disregard for human life.

The Court relied on the Bolam Test, which states that a doctor is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of medical professionals. Since the doctors in this case attempted to treat the patient according to standard procedure, they were protected from criminal charges.

To prevent the harassment of medical professionals through "malicious" criminal proceedings, the Court issued the following mandatory guidelines:

1. Expert Opinion: A private complaint should not be entertained unless the complainant has produced prima facie evidence in the form of a credible opinion from another competent doctor.
2. Investigative Caution: Before arresting a doctor, the Investigating Officer (IO) must obtain an independent medical opinion, preferably from a government doctor specialized in that field.
3. No Habitual Arrests: A doctor should not be arrested in a routine manner. Arrest should only occur if it is absolutely necessary for the investigation or to prevent the doctor from absconding.

The Court concluded that the non-availability of an oxygen cylinder was an administrative failure of the hospital. Holding a doctor criminally responsible for such equipment failures, without proof of personal gross recklessness, would be a "disservice to society," as it would discourage doctors from treating critical patients for fear of legal persecution.

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