Law of Torts - II : Previous Year Questions (2018)

PART – A

Q1. Who is a Consumer?

Ans. 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.

Q2. Explain 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.

Q3. 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.

Q4. What do you mean by '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].

Q5. What is the meaning of Defect in Goods?

Ans. According to Section 2(10) of the CPA, 2019, Defect means any fault, imperfection 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, expressed or implied, or as is claimed by the trader in any manner whatsoever in relation to any product/service and expression defective shall be construed accordingly.

Q6. What is the jurisdiction of District Forum?

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 do you mean by 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.

Q8. What is Complaint?

Ans. According to Section 2(6) of the CPA, 2019, the expression complaint means any allegations in writing made by a complainant that: -

1. An unfair contract or unfair trade practices or a restrictive trade practice has been adopted by any trader/service.
2. The goods bought by him or agreed to be bought by him, suffer from one or more defects.
3. The services hired or availed of or agreed to be hired or availed of by him, suffer from any deficiency.
4. A trader/service provider, as the case may be, has charged for the goods/services mentioned in the complaint, a price in excess of the price –

1. Fixed by or under any law for the time being in force.
2. Displayed on the goods or any package containing such goods.
3. Displayed on the price list exhibited by him or under any law for the time being in force.
4. Agreed between the parties.

5. The goods which are hazardous to life and safety when used, are being offered for sale to the public.
6. The services which are hazardous or likely to be hazardous to life or safety of the public when used, are being offered by a person who provides any service and who knows it is ingenious to life of public.
7. A claim for product liability action lies against the product manufacturer, seller, or service provider, as the case may be.

Q9. What is the 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. 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.

PART – B

Q11. What are the 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.

Q12. What is the composition of District Forum?

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. Write an essay on 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. Can the State Commission transfer the complaint from one District Forum to another District Forum? Explain.

Ans. Yes, under Section 48 of the Consumer Protection Act, 2019, the State Commission has the power to transfer a complaint from one District Commission (formerly District Forum) to another District Commission within the same State.

Section 48 states, “On the application of the complainant or of its own motion, the State Commission may, at any stage of the proceeding, transfer any complaint pending before a District Commission to another District Commission within the State if the interest of justice so requires.”

The transfer must be made to another District Commission located within the same state; it cannot transfer a case to a commission in a different state.

Essential Grounds

The primary legal ground for a transfer is the "interest of justice". While not strictly defined, this typically includes:

1. Convenience: If the complainant or witnesses have moved and attending the original forum is difficult.
2. Fairness: If there is a reasonable apprehension of bias at the current District Commission.
3. Logistics: If the original forum is unable to conduct hearings due to vacancies or administrative issues.

PART – C

Q15. What is the need of 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

Q16. Discuss the composition, 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. Discuss Medical Negligence liability with 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.

Comparison: