Jago Grahak Jago

Product Liability, an essential component of consumer protection, experienced a significant change with the introduction of the Consumer Protection Act, 2019 (“2019 Act”) in India. For the first time in Indian law, product liability was clearly defined under this extensive legislation. The 2019 Act specifies that product liability involves the duty of product manufacturers, sellers, or service providers to compensate consumers for any damages caused by faulty products or inadequate services linked to those products. This new Act replaced the previous Consumer Protection Act of 1986, received the President’s approval, and was officially announced in the Gazette of India on August 09, 2019. Although it was passed in 2019, most of its sections, including those about product liability, came into effect on July 20, 2020. This legislative change aimed to enhance consumer protection, implement stricter rules, and introduce new measures to handle changing market trends. Notably, the inclusion of product liability in the 2019 Act signaled a move away from the old “buyer beware” approach, moving towards a system where sellers are made accountable—aptly described as “seller beware.” This change highlights a shift in the mindset of consumer protection, focusing on proactive steps to guarantee product safety and responsibility throughout the supply chain. Product liability: Product Liability signifies the legal responsibility borne by a creator, vendor, or service provider for distributing a defective item. Customarily, the producer must comply with all stipulations, warranties, and conditions, fulfilling the standard anticipations of buyers. Product liability can be understood through the lenses of tort law and contract law. Within tort law, product liability might arise when a creator, vendor, or service provider fails in their duty of care towards consumers. Alternatively, strict liability could be enforced as producers are held responsible for ensuring the items they offer to consumers are in satisfactory condition. In the realm of contract law, product liability can emerge from a breach of contract or warranty by the creator, vendor, or service provider. The incorporation of product liability in the Consumer Protection Act 2019 marks a positive progression in the enhancement of consumer rights, necessitating an exploration of its diverse facets in the Indian scenario. Evolution of product liability in India: The Evolution of Product Accountability in India In the times preceding the enactment of the Consumer Protection Act of 2019, the Consumer Protection Act of 1986 was the primary legislation safeguarding consumer interests, albeit without an explicit mention of product accountability. Despite this, individuals could pursue remedies under the Act’s clauses concerning ‘defects’ and ‘shortcomings.’ The advent of the CPA 2019, which specifically addressed product liability, signified a significant transformation in the legal domain, providing enhanced clarity and broadening the scope for consumers to seek recompense for injuries inflicted by faulty merchandise. The structure governing product responsibility in India has progressed in tandem with various other statutes, such as the Food Safety and Standards Act of 2006, the Legal Metrology Act of 2009, and industry-specific guidelines instituted by regulatory authorities like the Bureau of Indian Standards (BIS) and the Automotive Research Association of India (ARAI). These legislative measures augment the CPA 2019 by guaranteeing the upkeep of product safety criteria across diverse sectors. Product Responsibility as per the CPA 2019: The CPA 2019 distinctly outlines product responsibility, offering a detailed legal structure for consumers to claim recompense for harm or damages stemming from faulty goods. Chapter VI of the legislation is devoted to product responsibility cases, detailing the obligations of producers, vendors, and service providers. It enumerates specific bases on which responsibility can be determined, such as production errors, design imperfections, insufficient instructions or alerts, and violations of explicit guarantees. The legislation also introduces the notion of ‘harm,’ encompassing physical injury, damage to assets (excluding the defective item itself), and psychological pain or emotional suffering. Notably, the Act dismisses claims related to financial or business losses. Key Elements of Product Liability Case To commence a product liability case, certain components must be clearly demonstrated: • Injury: The individual must have experienced injury or damage due to a flawed product. • Flawed Product: The injury must be a direct consequence of a flaw within the product itself. • Accountability: The imperfection must be linked to the maker, distributor, or service provider. The CPA 2019 specifies the distinct accountabilities for each entity participating in the distribution network: • Manufacturer Accountability: A producer is accountable for any injury resulting from design flaws, production errors, or the failure to honor warranties or provide sufficient guidance. • Service Provider Accountability: A service provider can be deemed responsible if their carelessness or non- compliance with legal norms causes injury. • Seller Accountability. Vendors might also bear responsibility if they exert significant control over the product or neglect to offer proper instructions or alerts. Protections and Exemptions: The Consumer Protection Act of 2019 outlines multiple defenses against claims of product liability. For example, a producer of goods isn’t responsible for injuries stemming from the improper use or modification of the item by the user. Likewise, if the producer has supplied sufficient cautions or guidelines, they might not be deemed responsible for any ensuing damage. The legislation also considers exceptions for producers when the product is utilized under particular circumstances, such as in factory environments or by experts under skilled oversight. Sanctions and Implementation: The Consumer Protection Act of 2019 enforces severe repercussions upon producers, vendors, and service entities deemed accountable for faulty goods. Consumer tribunals, alongside the Central Consumer Protection Authority (CCPA), possess the jurisdiction to mandate the withdrawal of perilous products, remunerate purchasers, and levy punitive reparations for carelessness. When it comes to deceptive marketing, the legislation stipulates incarceration and substantial monetary penalties for those at fault. The CCPA holds a pivotal position in the application of the Act’s stipulations, ensuring the preservation of consumer entitlements and the compliance of manufacturers with safety protocols. This body is endowed with the capability to scrutinize infringements, command product retrievals, and undertake requisite measures to safeguard consumer welfare. Possible Defences To A Product Liability Case: When

15 Oct 2024 New Delhi: Companies using terms such as ‘eco-friendly’, ‘organic’ and ‘natural’ in their advertisements must substantiate their claims and include adequate qualifiers and disclosures under a new law against greenwashing. Under new guidelines issued Tuesday, companies claiming environmental benefits in advertisements to promote their products or services must ensure that consumers receive accurate and transparent information, said consumer affairs secretary Nidhi Khare. Misleading or false advertising could result in penalties or even jail terms. Mint was the first to report on 12 October on the government’s plans to tighten the screws on greenwashing in corporate promotions. These new rules come amid growing concerns over greenwashing—where companies mislead consumers about their environmental practices to enhance their brand image. Companies claiming environmental benefits in advertisements to promote their products or services must ensure that consumers receive accurate and transparent information, consumer affairs secretary Nidhi Khare said while announcing the new rules. The Guidelines for Prevention and Regulation of Greenwashing or Misleading Environmental Claims 2024 apply to environmental claims by manufacturers, service providers and traders whose goods, products, or services are advertised. “No person to whom these guidelines apply shall engage in greenwashing or misleading environmental claims,” Khare said. “All environmental claims must be supported by accessible, verifiable evidence from independent studies or third-party certifications.” “This is a welcome step that makes information easily accessible to consumers, thereby enhancing consumer awareness and promoting responsible advertising with accuracy, transparency, and accountability,” said Karun Mehta, partner, Khaitan & Co., a law firm. What’s in a term? Generic terms such as clean, green, eco-friendly, eco-consciousness, good for the planet, minimal impact, cruelty-free, carbon-neutral, pure, sustainable, and regenerative cannot be employed without adequate qualifiers and substantiation. For instance, if a product is marketed as sustainable, it must be backed by reliable data and documentation that can be verified by consumers or regulatory bodies. And if a product is described as recyclable, the advertisement must be clear if that applies to the product’s entire structure or just a specific part. The new guidelines also emphasise the importance of using consumer- friendly language, particularly when introducing technical terms such as environmental impact assessment, greenhouse gas emissions, and ecological footprint. Advertisers are encouraged to explain these concepts in simple terms to help consumers understand their meaning and implications, the guidelines state. In terms of transparency, the guidelines mandate that any company making an environmental claim must disclose all material information in the relevant advertisement or communication. This can be accomplished by incorporating a QR code or a link to a webpage in the advertisement, allowing consumers to access detailed information.The guidelines also specify that advertisers avoid cherry-picking data from research studies to highlight favourable observations while obscuring less favourable findings. “When making environmental claims, it is essential to clarify whether the claim refers to the product as a whole, a specific component, the manufacturing process, packaging, the manner of use, or its disposal,” Khare said. The guidelines also state that comparative environmental claims that juxtapose one product or service against another must be based on verifiable and relevant data, and disclose exactly what specific aspects are being compared. Rights and penalties Per Section 24 of the Consumer Protection Act, the Central Consumer Protection Authority can impose penalties for misleading corporate claims, with fines of up to ₹50,000, which may escalate to ₹1 crore for repeated violations. As per Section 21 of the Act, which establishes penalties for misleading advertisements, first-time offenders may face fines of up to ₹10 lakh, while repeat offenders can be fined up to lakh with possible imprisonment of up to two years. Additionally, Section 40 protects the rights of consumers, allowing them to seek compensation for any damages or losses incurred due to violations. India’s regulations on green claims and greenwashing are similar to those in the United Kingdom and the European Union. All three focus on transparency and accountability in environmental claims made by companies. The UK’s Competition and Markets Authority introduced a Green Claims Code in 2021 to protect consumers from misleading green claims. The European Union’s Green Claims Directive requires companies to back up their green claims with life-cycle assessments and third-party verifications. According to the European Parliament’s website, the European Commission proposed this directive on 22 March 2023 to improve transparency and combat greenwashing. The European Parliament adopted its position in March this year, and its council approved a general approach on 17 June. Interinstitutional negotiations are set to begin shortly, as per the website. Source: Live Mint

08 Nov 2024 The Supreme Court on Thursday dismissed a request to revisit its landmark 1995 judgment, which had classified medical services under the Consumer Protection Act (CPA) and held that healthcare providers, including doctors and hospitals, could be held accountable under the Act for service deficiencies. A three-judge bench comprising justices Bhushan R Gavai, Prashant Kumar Mishra and KV Viswanathan addressed a reference by a two-judge bench that sought reconsideration of the Shantha ruling while discussing the distinct status of legal professionals, who are excluded from the CPA’s purview. However, the bench on Thursday found the referral unnecessary, observing that the Shantha decision remained legally sound and relevant to ensure accountability in health care. “We find that the issue before the Court was with regards to the legal profession and the court, in unequivocal terms, came to a conclusion that the legal profession is not covered by the provisions of the Consumer Protection Act. Since the court came to the aforesaid finding, irrespective of the finding of this court in Shantha, the reference was not necessary. The question as to whether the other professionals excluding legal profession could be covered under the Act can be considered in appropriate cases, having a factual foundation,” stated the bench, closing the reference. It further clarified that “the reference was not necessary” because the Shantha ruling addressed the specific contractual and fiduciary responsibilities that medical professionals owe to their patients, unlike the nature of services offered by legal professionals. To be sure, the Bolam Test — a standard that has long been recognised in medical negligence cases, has been consistently reaffirmed by the Supreme Court of India. Originating from the 1957 English case Bolam Vs Friern Hospital Management Committee, this test states that a doctor is not negligent if they act in accordance with a practice accepted by a responsible body of medical professionals. In the Indian context, the Supreme Court endorsed the Bolam Test in the case of Jacob Mathews Vs State of Punjab (2005), holding that only if a doctor lacks requisite skills or fails to exercise reasonable competence should liability be imposed. By a judgment on October 24, the Supreme Court further emphasised that medical professionals cannot be held liable for negligence solely because a surgery or treatment does not produce the expected results, asserting that culpability of doctors must stem from clear evidence pointing to a deviation from accepted medical practices. On May 14, a bench of justices Bela M Trivedi and Pankaj Mithal ruled that lawyers cannot be sued in consumer courts for poor service, clarifying the extent of their liability under CPA of 1986, re-enacted in 2019. This judgment held that legal representation for a fee does not constitute a service under law, noting the legislature did not intend to include professions or professionals within the purview of the Act, which aims at addressing consumers’ grievances against services rendered by a businessman or a trader in regard to goods or products. Considering the “sui generis (unique)” nature of services lawyers provide in making the judicial system efficient, effective and credible, their services could not be compared with the services rendered by other professionals, the court said. This judgment had come in response to a clutch of petitions challenging a 2009 decision by the National Consumer Disputes Redressal Commission. The commission had held that services rendered by lawyers fall within the definition of “service” under Section 2(0) of the CPA, 1986, which was re-enacted in 2019. In the same verdict, the Supreme Court also proposed a review of its 1995 ruling in the Shantha case, which held that health care services are covered under CPA, allowing doctors to be sued for deficiency in service and negligence. “The said decision deserves to be revisited having regard to the history, object, purpose and the scheme of the CPA and in view of the opinion expressed by us that neither the ‘profession’ could be treated as ‘business’ or ‘trade’ nor the services provided by the ‘professionals’ could be treated at par with the services provided by businessmen or traders, so as to bring them within the purview of the CPA,” said the bench. It is pursuant to this reference that the matter came up before a three-judge bench on Thursday. Source: Hindustan Times

16 Oct 2024 In a bid to combat food contamination from “human waste and contaminated substances,” Chief Minister Yogi Adityanath announced on Tuesday that the government plans to introduce a new law aimed at safeguarding consumers’ rights, reported TOI. This law will require food and beverage sellers to provide essential information to consumers and mandate that establishments display signboards and ensure staffwear identification badges. The CM emphasised the need for strict penalties for those using pseudonyms or providing false information. He stated that any infiltrators or illegal foreign nationals working in food establishments would face serious consequences. “There should be provisions for the harshest punishment against those using pseudonyms or providing false information. If any personnel in a food establishment is an infiltrator or an illegal foreign national, strict action must be taken,” the CM said. “Each food establishment must ensure that no food is contaminated within its premises. It will be mandatory to install a sufficient number of CCTV cameras in the kitchens and dining areas of food establishments for continuous monitoring, with at least one month’s footage made available to the district administration upon request,” the chief minister said while reviewing the proposed law at a meeting, according to the TOI report. The BJP leader addressed recent alarming incidents where food items, such as juice and bread, were allegedly tainted with harmful substances, calling them “horrific” and detrimental to public health. He highlighted that such “vile attempts” are unacceptable and can negatively impact social harmony, noted TOI. The meeting followed criticism of a recent order requiring eateries along the Kanwar route to display the names of all personnel, aimed at allowing devotees to make informed dining choices. The proposed law will impose strict regulations on hotels, restaurants, roadside eateries, and street vendors to ensure food purity and maintain consumer trust. Offenders could face imprisonment and fines, with violations treated as cognizable and non-bailable offences. Additionally, operators will be required to enforce hygiene standards, including the use of head covers, masks, and gloves by food preparers and servers, as well as provide personnel details to relevant authorities. Source: Economic Times

13 Oct 2024 New Delhi: Over 53,000 complaints and appeals that reached Central and State Information Commissions were returned in one year citing rules, with transparency activists raising concerns over the practice saying it could discourage urban poor and rural households from fighting till the end. Source: Deccan Herald

23 Oct 2024 Frequent travellers on Indian Railways may want to think twice before settling in for a cozy ride. A recent disclosure, obtained through a Right to Information (RTI) request by The New Indian Express, has revealed a glaring lapse in hygiene practices: While bed sheets and pillow covers in air-conditioned coaches are washed after every journey, blankets are cleaned just once a month — or even less frequently. This hygiene gap has left many passengers questioning the cleanliness of the bedding they rely on during their travels, raising concerns about whether Indian Railways is doing enough to ensure passenger comfort and safety. Clean sheets, dirty blankets: A hygienic disparity Passengers travelling in air-conditioned coaches receive a neatly packaged set of bedding, which includes bed sheets, pillow covers, and blankets. While the cost of these items is included in the train fare, there is a glaring disparity in how they are maintained. According to the RTI response, bed sheets and pillow covers are washed after every journey, ensuring a fresh set for each new passenger. However, the same cannot be said for blankets. Rishu Gupta, section officer of Environment and Housekeeping Management (EnHM) at the Ministry of Railways, confirmed that wool blankets are only washed once a month, or twice in rare cases when they are particularly soiled. This has caused discontent among passengers who feel they are paying for bedding that does not meet basic hygiene standards. Housekeeping confirms limited blanket cleaning Housekeeping staff on long-distance trains confirmed that the infrequent washing of blankets is a common practice. One staff member, with over ten years of experience, disclosed that blankets are only sent for washing once a month, and even then, only if they are visibly dirty. “We only give the blankets for washing if there’s a foul smell or if something like vomit or food spills on them. Otherwise, we just fold them up and use them again, he admitted. This casual approach to cleanliness has left many passengers questioning how often they are actually getting a clean blanket. While bed sheets and pillow covers are routinely laundered, the blankets are simply folded and stored for the next journey unless a complaint is raised or a visible issue is detected. A history of inadequate hygiene Concerns over blanket hygiene are not new. A 2017 report from the Comptroller and Auditor General (CAG) had already flagged serious issues, revealing that some blankets went unwashed for as long as six months. Despite this damning report, Indian Railways’ blanket cleaning protocols appear to have seen little improvement, with the recent RTI confirming that minimal cleaning is still the norm. Calls to replace wool blankets In light of these revelations, experts and former railway officials are now calling for Indian Railways to phase out wool blankets altogether. A retired senior officer from the EnHM division suggested that these heavy blankets, which are difficult to clean, are no longer fit for purpose. “The blankets are too heavy, and ensuring they are properly washed is a challenge. It’s high time the Railways replaced them with lighter, easier-to-maintain alternatives, she said. Passengers seem to agree. Many have expressed dissatisfaction with the blankets provided, pointing out that their dark colours — typically black or brown — often hide stains, making it hard to tell when they are truly clean. Railways’ laundry management in question Indian Railways operates a vast laundry network, with 46 departmental laundries and 25 Build- Own-Operate-Transfer (BOOT) laundries across the country. Departmental laundries are owned by the Railways, but the staff are often employed on a contractual basis. In BOOT laundries, the land belongs to Indian Railways, while private contractors manage the washing equipment and staffing. Despite these resources, the cleanliness of blankets continues to be a sticking point. While the infrastructure is in place to maintain clean bedding, the current protocols for washing blankets do not appear to be sufficient, leaving passengers with doubts about the hygiene of the bedding they use during long-distance travel. Source: Business Standard

06 Nov 2024 GUWAHATI: The District Consumer Disputes Redressal Commission in Bengaluru has directed Dilmil Matrimony, a matchmaking website, to pay t60,ooo to a man after it failed to fulfil its promise of finding a bride for his son. The ruling was made by Commission President Ramachandra MS along with members Nandini H Kumbhar and Savitha Airani. Highlighting that it failed to provide even a single match, the court found Dilmil Matrimony deficient in its service, criticising its tendency to advertise “honest matchmaking services” and promising to fulfil client preferences. The case began when Vijaya Kumar approached Dilmil Matrimony’s office on March 17, 2024, and paid ₹30,000 for a service package, expecting the platform to find a suitable match for his son within 45 days. However, despite multiple follow-ups and visits, the company failed to offer any potential matches. When Kumar sought assistance, Dilmil Matrimony allegedly responded unhelpfully and used inappropriate language, further denying his request for a refund. Following the lack of response to a legal notice sent on May 9, Kumar went ahead and filed a complaint with the consumer forum. The Commission proceeded with the case in the absence of Dilmil Matrimony, whose representatives failed to appear for hearings despite being served notice. The Commission ruled that Dilmil Matrimony’s failure to deliver the promised services amounted to a deficiency in sewice and unfair trade practice, resulting in a breach of consumer trust. Consequently, it directed the website to refund 00,000 along with interest and ordered additional compensation for Kumar: Qo,ooo for inconvenience, for mental agony, and to cover litigation costs. The total compensation, therefore, amounts to ₹60,000. Source: Guwahati Plus