March 2022

BENGALURU, 13 March, 2022: In a case where a customer sued a restaurant in Bengaluru for overcharging him 40 paise, a consumer court recently ruled that over 50 paise can be rounded off to one rupee as per government rules. The judges, however, chided the complainant for wasting the court’s time for publicity and ordered him to pay Rs 4,000 to the managing director of the restaurant as compensation. It all began on May 21, 2021 when the senior citizen, identified as Murthy, visited Hotel Empire on Central Street and ordered food for takeaway. The staff gave him a bill of Rs 265. However, with the total amount coming to Rs 264.60, Murthy questioned the staff. When he failed to get a favourable response, he approached the Bengaluru consumer forum accusing the restaurant of looting customers. The customer had sought Re 1 as compensation for alleged deficiency of service and stated that the incident had caused him ‘mental shock and agony’. In a litigation that commenced on June 26, 2021, Murthy presented his case on his own while advocates Amshuman M and Adithya Ambrose represented the restaurant. The duo argued that the complaint was frivolous and vexatious, and the restaurant had charged the next round figure as tax in the bill and not for the food, which is permitted under section 170 of Central Goods and Services Tax Act-2017. Following the proceedings lasting over eight months, the judges cited government of India circulars – one withdrawing up to 50 paise, and another stating any amount less than 50 paise to be ignored and over 50 paise to be rounded off to the nearest rupee. Citing that there was no deficiency on the part of the restaurant in charging 40 paise, the court said the complainant is not entitled to any relief in the case which he has used for personal publicity and wasted valuable time of the court, the opposite party and their representatives. On March 4, 2022, the court asked the complainant to pay a compensation of Rs 2,000 to the opposite party apart from an additional Rs 2,000 towards its court expenses, all before 30 days from the order. Source: timesofindia.com

BENGALURU, Feb 17, 2022: The insuree not being behind the wheel and someone else driving at the time of the accident are no grounds to deny motor insurance claim for a damaged vehicle, a city consumer court recently observed. The case pertained to a Bengalurean whose car was damaged in a crash that happened after a hotel parking attendant drove it away without the owner’s knowledge in Thiruvananthapuram, where he was on a business visit. The court ordered the insurer to pay over Rs 6.8 lakh in claim money with interest and ordered the hotel owner, parking contractor and a hotel aggregator to jointly and severally bear the rest of the damage cost. The vehicle’s repair bill had touched Rs 9.5 lakh. Insuree is a person who buys insurance for his vehicle. Insurance co told to pay 6.8L for the damaged car even if the claimant was not at the wheel (1 On September 3, 2019, Varun Sequeira, 36, a resident of Vijayanagar in Bengaluru, and his relative, drove to Thiruvanathapuram to set up his ice-cream parlour business there. He checked into Vibrant Stay hotel in the Kerala capital and as requested by the hotel manager, handed over his car keys to the parking attendant. In the early hours of September 5, 2019, Sequeira received numerous call from the owner of a local LED lights shop where he had shopped the previous day. The man had spotted Sequeira’s car in a completely damaged state and abandoned on a city road. He had called Sequeira after finding his shop’s purchase bill lying on the vehicle seat. The Bengalurean rushed to the hotel lobby and learned from the manager that the parking attendant had illegally taken his car for a spin in the early hours and crashed it. Sequeira and the manager approached the local police station and lodged a complaint, apart from alerting Go Digit General Insurance Limited with whom the car was insured. However, Sequeira told the insurance company that he was driving the car at the time of the accident, which was later proved false by a Go Digit investigator. On the grounds of misrepresenting facts about the accident, his money claim was repudiated by the insurance company. With damage to his car estimated at Rs 9.5 lakh but his insurance value only Rs 6.8 lakh, the Bengalurean was in a fix as the insurer denied his rightful claim and the hotel owner was not cooperating. Finally, in November 2020, Sequeira approached the Bengaluru Rural and Urban 1st additional district consumer disputes redressal forum in Shantinagar with a complaint against Go Digit General Insurance Limited, the owner of Vibrant Stay hotel, Oravel Stays Private Limited, as hotel aggregator Oyo was earlier known, and Crystal Staffing Solutions in Kochi which had provided parking attendants for the hotel. An advocate presented Sequeira’s case, while his counterparts from Go Digit and Vibrant Stay claimed the case was baseless. The insurance firm’s lawyer argued the complainant had falsely stated he was driving the car during the accident and the lie was nailed when the matter was probed and thereafter the claim was denied. Crystal Staffing Solutions remained ex-parte. Source: timesofindia.com

Feb 22, 2022: With the ease of purchasing nearly anything online today, E-commerce has understandably become the norm. You can browse through dozens of stores and buy a product of your choice with just a few clicks. The growth of online stores has been so rapid that it is hard to distinguish the genuine ones from the ones that are scams and may hook you for fraudulent activities. So, here are the five most important tips that you need to keep in mind for safe digital shopping 1. Navigate directly to an online store While shopping online, avoid using any suspicious links sent to you in a message or an email​​ and ensure that you are making a safe purchase from a web browser of the verified store. It is also essential to be mindful that a shopping website’s URL (address) should always begin with ‘HTTPS’ and a closed padlock icon in the address window when you are about to make a transaction on it. These tiny details that you need to look out for will help you avoid fraudulent and duplicitous activities that are raging in the online market. 2. Check the credibility of the store One of the ways to tell a genuine store from a scam is to check for reviews and testimonials of previous users. Do not purchase from a store that has no credible reviews or buyers. It is equally important to understand that businesses and sellers that enjoy a good and credible reputation most likely have a wing or a section on their website about their privacy policies. The online shopping market is so fast-paced that you get to know all about online shopping advances, which are readily available, but it is crucial to avoid unsolicited shopping opportunities via email, social media, or cold calls, no matter how tempting the offers or sales may be. 3. Verify the contact details of the seller There are more ways to check a website’s credibility beyond looking at its online reviews. No matter how exciting the product, sale, or offer, always ensure that you verify the seller’s contact details, identify their location, and ascertain the name and email address. While shopping on the internet, it is always better to be safe than sorry. 4. Steer clear from offers that look too good to be true Plenty of scammers and fraudulent sites advertise offers that are too good to be true. These offers are used as baits and are, in reality, financially unviable. For example, if you are shopping for a mobile phone that is around Rs.50,000 but they offer a price as low as Rs.1500. This is a simple and straightforward example to scam you with offers. So, always look for realistic offers and promos, and do not fall for offers that seem unbelievable. 5. Always check your consumer rights on the trader’s website It is vital to be mindful that online sellers should provide you with correct and transparent information about the rights you hold as a consumer. You should be clear about the return policy, legal, and genuine warranty before your purchase. If the trader has none of these mentioned as their services on their website, then it is best to not purchase from them and look for those that provide and promise these services to ensure the genuineness of the products. The author is Country Manager, WISE Source: thehindubusinessline.com

A group of senior members of the Indian Medical Association (IMA), the largest network of doctors in the country, met Union health minister Mansukh Mandaviya early this week. Their main demand was an amendment to the Consumer Protection Act, 2020, to get healthcare services explicitly removed from the purview of the Act. The government has remained non-committal so far but in case it accepts the demand, it may have far-reaching implications for the healthcare ecosystem, including doctors and patients, What’s the background to healthcare being included in the Consumer Protection Act? It was in 1995 that the medical profession was brought under the purview of the 1986 Act and patients paying for health services were defined as consumers following a landmark judgment by the Supreme Court. What are the reservations the IMA has developed over healthcare’s inclusion in the Act?   IMA says the move completely changed the doctor-patient relationship dynamic and led to a massive trust deficit between the two. On ground, it has meant that in cases of medical negligence and malpractice, patients and aggrieved families could appeal against doctors at consumer protection forums for monetary compensation and in some cases, regulatory action against medical practitioners.  IMA says that this has led to a raft of cases against doctors, making it tough for them to practice medicine. Under the first version of the draft CPA (Amendment) bill introduced in 2018, healthcare stayed in the list of services under its purview but following protests by doctors, it was modified despite having passed by the Lok Sabha once. The 2019 version of the bill removed healthcare from the list of services covered. So what’s the point of contention now? The Act that was eventually notified in 2020 says “service” means service of any description made available to potential users and includes, but is not limited to, the provision of facilities in connection with banking, finance, insurance, transport, processing, supply of electrical or other energy, telecommunications, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include any service that is free of charge or provided under a contract of personal service. This, in practice, means that despite healthcare not being mentioned in the “inclusion list,” it is also not excluded from the list of services covered by the Act and litigation against healthcare providers in consumer courts has continued. Dr R V Asokan, a former general secretary of the IMA, says that unless the Act explicitly removes healthcare from the list services under its ambit, the doctors’ body will keep fighting for it. He also says that the Supreme Court, in the past, had turned down its appeals to remove healthcare from the purview of Act so the association wants a “parliamentary route to validate the point that we have been making.” What does it mean for patient rights? T Sundararaman, a former executive director of the National Health Systems Resource Centre, who is also associated with Jan Swasthya Abhiyan, insists that since the Clinical Establishment Act, 2010–a legislation to regulate private healthcare providers in the country–has not been implemented properly, patients will be at a loss if platforms for judicial appeal in cases of medical negligence and violation of ethical practices are taken away from them. “I understand that doctors at certain level, too, feel vulnerable and there are a few malafide cases against them, but there has to be some grievance redressal mechanism where patients and their kin can fight for the protection of their rights. Otherwise, only cases of criminal negligence can reach the judiciary,” he said. Dr Asokan insisted that a different system for patients’ grievance redressal would be acceptable to the IMA provided a cap is put on the compensation awarded to patients. Source: MoneyControl.com

The Supreme Court has held that the stipulated condition to pre-deposit 50% of the amount awarded to appeal before it against an NCDRC Order, wouldn’t  have restrospective effect. Note: In terms of Section 67 of the 2019 Act, no appeal against the order of National Commission shall be entertained by the Supreme Court unless the person has deposited fifty per cent of the amount required to be paid. Whereas, under the 1986 Act, the condition was that no appeal shall be entertained by the Supreme Court unless the person who is required to pay the amount deposits fifty per cent of the amount or fifty thousand, whichever is less. The Bench comprising of Justice Hemant Gupta and Justice V. Ramasubramanian observed that the afforsaid will not be applicable to the complaints filed prior to the commencement of the Consumer Protection Act, 2019. In present appeal before the bench has been filed assailing an NCDRC Order in a Consumer Complaint filed before the 2019 Act came into force. The NCDRC allowed the complaint IN 2021 whereas the 2019 Act came into force in 2020. The question thus, for the Court to settle was whether the appeal before it would be governed under the Consumer Protection Act, 2019 or under the erstwhile 1986 Act? Learned Attorney General appearing for the appellant submitted that the appeal has been preferred under Section 23 of the 1986 Act and not under the 2019 Act which came into force from 20.7.2020. It was stated that the condition of deposit of 50% of the amount is more onerous than what was provided under the 1986 Act. Therefore, keeping in view the principle that the law which is applicable at the time of initiation of the lis would be applicable, the provisions of 1986 Act would govern the present appeal and not the provisions of 2019 Act. The appellant has deposited ₹50,000/- vide demand draft in terms of second proviso to Section 23 of the 1986 Act while exercising its right of appeal under the 1986 Act. Hence, the present appeal be heard on merits. He further argued that Section 107 of 2019 Act and Section 6 of the General Clauses Act, 1897 unequivocally operate against any question of retrospectivity. Sub- Section (2) of Section 107 of 2019 Act does not change the legal position as mentioned under Section 6 of the General Clauses Act. Sub-section (2) of Section 107 of the 2019 Act protects the actions taken under the 1986 Act insofar as such actions are not inconsistent with the provisions of 2019 Act. Such actions shall be deemed to have been undertaken as per the corresponding provisions of 2019 Act. Sub-section (3) contemplates that the particular matters in subsection (2) shall not prejudice or affect the general application of Section 6 of the General Clauses Act with regard to the effect of repeal. Referring to clause (c) of Section 6 of the General Clauses Act, he argued that unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. Further, Clause (e) stipulates that the repeal shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment which may be imposed as if the repealing Act or the Regulation has not been passed. He thus argued that the repeal of enactment does not affect any right acquired or accrued under the enactment so repealed or affect any legal proceeding in respect of such a right. Such effect was to be construed only when a different intention appears from the repealing statute. It was thus argued that the right to file an appeal under the 1986 Act has accrued in favour of the appellant in terms of Section 6(c) of the General Clauses Act and that no different intention is discernable from the repealing Act. Referrence was made to Hoosein Kasam Dada (India) Ltd. Vs. The State of Madhya Pradesh & Ors, 1953 Latest Caselaw 11 SC, State of Bombay Vs. Supreme General Films Exchange Ltd., 1960 Latest Caselaw 87 SC, Vitthalbhai Bakorbhai & Ors Vs. The Executive Engineer, Capital Project & ANR, 1996 Latest Caselaw 203 SC, Hardeodas Jagannath Vs. State of Assam & Ors , 1968 Latest Caselaw 236 SC In view of the above, the Court concluded: “Since the returns were filed prior to the amendment but the notice for reassessment was issued after the Amending Act came into force, therefore, in view of the Hoosein Kasam Dada, the provisions of the Amending Act alone would be applicable and that is what has been held by this Court.” Inter-alia, for further clarification, the Court commented on few precedents and what they suggest: 1. In a judgment reported as K. Raveendranathan Nair & Anr. v. Commissioner of Income Tax & Ors. it has been held that the relevant date for paying the court fee would be when the proceedings were initiated in the lowest court and not when the appeal was preferred before the High Court in view of the amendment in the Kerala Court Fees and Suits Valuation Act, 1959. 2. In Anant Mills Co. Ltd. Vs. State of Gujarat & Ors, 1975 Latest Caselaw 9 SC a four-Judge Bench of this Court held that since the authority entertaining appeal has a jurisdiction to dispense with the compliance of requirement to deposit the amount of property tax, it is not onerous as discretion was vested with the appellate court. In another judgment reported as The Gujarat Agro Industries Co. Ltd. Vs. Municipal Corporation of City of Ahmedabad & Ors, 1999 Latest Caselaw 166 SC the judgment in Anant Mills was followed. 3. Ramesh Singh & Anr. v. Cinta Devi & Ors. held that an appeal under the Motor Vehicles Act, 1988 contemplating deposit of twenty-five thousand rupees or fifty per cent of the amount whichever is less will not be applicable to the claim applications filed under Motor

The Supreme Court on Tuesday held that if business-to-business disputes were construed as consumer disputes, it would defeat the very purpose of providing speedy and simple redressal as envisaged under the Consumer Protection Act [Shrikant G Mantri v Punjab National Bank]. A Bench of Justices L Nageswara Rao and BR Gavai found that a person availing services for commercial purposes, to come within the definition of a consumer under the Act, would have to establish that the services were availed only for the purpose of earning a livelihood by means of self-employment. “There cannot be any straitjacket formula and such a question will have to be decided in the facts of each case, depending upon the evidence placed on record,” the Bench noted. In a nutshell – The appellant, a stockbroker, availed an overdraft facility from the respondent bank with shares as security. The appellant also worked at the bank; – On repayment of overdraft, the shares were not returned and thus, the NCDRC was moved; – The Commission held that he was not a ‘consumer’ under the Consumer Protection Act; – The Supreme Court held that if purchase of goods was for commercial purpose, the purchaser would not be a consumer; – Only transactions for earning of livelihood by means of self-employment would be included; – The relationship in this case was held to be purely “business to business”, and the appeal was dismissed. The top court was hearing an appeal against an order of the National Consumer Disputes Redressal Commission (NCDRC) which held that the appellant was not a consumer under the Act. The appellant was a stockbroker who had availed an overdraft facility from the respondent-bank and pledged certain shares as security. The appellant was also a working as a stock­broker of the bank. On reaching a settlement, and a ‘no-dues’ certificate having been issued, the appellant sought the release of the shares pledged as security. When this request was not honoured, the appellant filed a complaint before the Commission, alleging deficiency in services. The Commission held that the appellant availed the services of the bank for a ‘commercial purpose’ and thus, was not a consumer under the Act. Challenging this order, the apex court was moved. It was argued that the appellant had a dual relationship with the bank, in one capacity as a consumer and the other as a worker. It was stated that there was no reason for the shares to be withheld once the dues had been cleared. He submitted that the Act includes anyone who could show that the services availed by them were exclusively for the purposes of earning livelihood by means of self-employment. Contrarily, the bank insisted that the Act was a special statute enacted with the purpose of providing speedy and simple redressal in consumer disputes, and if the definition of ‘consumer’ was expanded to someone who availed services for commercial purposes, the intent of the Act would be defeated. On hearing both parties, the Court elaborately discussed the legislative history as to how the Act came to exist in its present form. Taking note of Parliament’s intent behind the Act, the Bench said, “It has been held that the entire Act revolves around the consumer and is designed to protect his interest. It provides for business­-to-­consumer disputes and not for business-­to-­business disputes.” The Bench, on discussing various precedents, concluded that a consistent view was taken that when goods are purchased “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit,” one would not be a ‘consumer’ under the Act. “It has been held that it is not the value of the goods that matters but the purpose to which the goods so bought, are put to,” the Court explained. However, it was stressed that whether a transaction was for a commercial purpose would depend on the facts of the case. In furtherance of this, when the Court examined the relationship between the appellant and respondent, it was concluded that the same was “purely a business to business relationship.” “It cannot be said that the services were availed exclusively for the purposes of earning his livelihood by means of self-employment.” With this, the appeal was dismissed. Senior Advocate Shyam Divan appeared for the appellant and Senior Advocate Dushyant Dave represented the bank. Source: LawUpdates.in