DEFICIENCY OF SERVICE AND CONSUMER LAW.
By ASHOK PRIYADARSHI
The Consumer Protection Act of 1986 provides for compensation to effected citizens, which has resulted in multiplicity of litigations before it and delayed decisions. A limitation of two years has been fixed in filing of complainants.
The National Commission being a bit technical holds that a consumer cannot be allowed to suffer merely because a civil suit is pending but observes that the law is not governed by all the provisions of Code of Civil Procedure .yet the sound principles of the law cannot be ignored and where in cases of dispute of fact the case cannot be adjudicated upon under the consumer law. The Consumer District Forums and the State Commissions on a complainant of deficiency of service not only settles the disputes, but also awards high interest.. But the legal aspect is a bit different as the awarding of interests is to be governed by the Interest Act,1978 until and unless the rate of interest is specified in the law under which a case is being filed.
The Supreme Court holds that the execution courts cannot grant interest until and unless it is mentioned in the decree or till the law provides for.
The banks have also been brought into its purview alleging deficiency of service towards its customers. The National Commission holds that Banks are to pay compensation if deficiency of service is proved both interest as well as compensation cannot be granted together. The major allegation against the bank is that it refuses to encash drafts and cheque, give loans etc. for one reason or the other.
The National Commission states that refusing encashment of cheque for unjustified reasons amounts to deficiency of service as well as a delay of in issuing duplicate draft and the banks are liable to pay interest on the amount for the period of delay in making the duplicate draft.
Disputes have been raised on wrong payments and doubts have been raised over the signature on the cheque over which the bank made payment . Courts holds that if the hand writing expert has opined pectoral identity as well as visual comparison reveals resemblance payments against the same in good faith cannot amount to deficiency in service.
It is beyond the jurisdiction of the Forums under the Consumer Protection Act to adjudicate on the questions of adequacy and reasonableness of the consideration or price charged for the service rendered or to be rendered. Where there is a disputed question of fact as well as demand of fantastic amount as compensation. A complaint under the said Act is not maintainable.
In cases of insurance if a policy is taken on a particular date, its effectiveness is fromthe commencement of that date. The Insurance Policy obtained on the date of the accident became operative from the commencement of the date of insurance i.
e. from the previous mid night and since the accident took place on the date of the policy the insurer became liable.
If there is nothing to show that the action of the Insurance Company was otherwise than in good faith and elaborated reasons are given for repudiation of claim Complaint under the Consumer Law not maintainable as there is no deficiency of service on the part of the Insurance Company.
A complaint on the same cause of action is not maintainable, when the earlier complaint has been allowed and the right of the complainant under the insurance policy has been awarded and if found to be frivolous and vexatious the complainant will have to pay cost to the opposite party. It has been clarified that repudiation of claim on the ground of suppression of material facts does not amount to deficiency of service
Jurisdiction under the Consumer Protection Act after the amendment is prospective in nature An insured is entitled for compensation for inordinate delay in settlement of claim
Delay in taking a decision amounts to deficiency of service but delay in payment of ex-gratia payment doesnot amount to deficiency in service and if a decision has been arrived at regarding the deficiency in service the State Commission is justified in granting interest.
If the policy shows that the Insurance Company will indemnify the insured against the loss or damage "by accidental external means".Land slide , caving in of the road comes within the scope of the definition of accidental external means repudiating a claim on the ground that such risk not covered amounts to deficiency of service .
It is also now well settled that the Consumer Protection Act is applicable to persons engaged in medical profession and the patient who is a consumer under the consumer law has to be awarded compensation for loss or injury suffered by him due to the negligence of the doctor by applying the same tests as applied in an action for damages for negligence. It is immaterial whether the treatment has been done in a private or a government hospital or a private nursing home.
Further the Supreme Court has held that the liability of the Insurance Company would depend upon the terms of the policy even though recommendation made by the tariff committee is statutory in character and binding on the insurer.