Supreme Court Quarterly Digest 2022 - CONSUMER PROTECTION LAW (Jan - Mar)

Consumer Protection Act, 1986 - If the NCDRC is of the opinion that the Surveyor was an unnecessary party or the pleadings are contradictory, it should have struck down the said party. The striking of surveyor from the array of parties would not make the complaint disjoined, as it was duty of the NCDRC to strike of an unnecessary party. (Para 3) Brahmaputra Biochem Pvt. Ltd. v. New India Assurance Company, 2022 LiveLaw (SC) 211

Consumer Protection Act, 1986 - The Act of 1986 is not a general law but a special law that has been enacted by Parliament specifically to protect the interest of consumers. [Overruled General Manager, Telecom v. M Krishnan, (2009) 8 SCC 481] (Para 18) Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar, 2022 LiveLaw (SC) 221

Consumer Protection Act, 1986 - The requirement of leading detailed evidence could not be a ground to shut the doors of any forum created under the Act like the Consumer Protection Act. The anvil on which entertainability of a complaint by a forum under the Act is to be determined, is whether the questions, though complicated they may be, are capable of being determined by summary enquiry. (Para 11) Sunil Kumar Maity v. State Bank of India, 2022 LiveLaw (SC) 77

Consumer Protection Act, 1986; Section 2(1)(d) - Legislative history discussed - The legislative intent is to keep the commercial transactions out of the purview of the Act and at the same time, to give benefit of the Act to a person who enters into such commercial transactions, when he uses such goods or avails such services exclusively for the purposes of earning his livelihood by means of self ­employment. (Para 21 - 46) Shrikant G. Mantri v. Punjab National Bank, 2022 LiveLaw (SC) 197

Consumer Protection Act, 1986; Section 2(1)(d) - The 'business to business' disputes cannot be construed as consumer disputes, thereby defeating the very purpose of providing speedy and simple redressal to consumer disputes. (Para 47) Shrikant G. Mantri v. Punjab National Bank, 2022 LiveLaw (SC) 197

Consumer Protection Act, 1986; Section 2(1)(d) - The question, as to whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, "commercial purpose" is understood to include manufacturing/industrial activity or business ­to ­business transactions between commercial entities; that the purchase of the good or service should have a close and direct nexus with a profit­ generating activity; that the identity of the person making the purchase or the value of the transaction is not conclusive for determining the question as to whether it is for a commercial purpose or not. What is relevant is the dominant intention or dominant purpose for the transaction and as to whether the same was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. It has further been held that if the dominant purpose behind purchasing the good or service was for the personal use and the consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, then the question of whether such a purchase was for the purpose of "generating livelihood by means of self -employment" need not be looked into. (Para 42) Shrikant G. Mantri v. Punjab National Bank, 2022 LiveLaw (SC) 197

Consumer Protection Act, 1986; Section 2(1)(d) - When a person avails a service for a commercial purpose, to come within the meaning of 'consumer' as defined in the said Act, he will have to establish that the services were availed exclusively for the purposes of earning his livelihood by means of self -employment. (Para 45) Shrikant G. Mantri v. Punjab National Bank, 2022 LiveLaw (SC) 197

Consumer Protection Act, 1986; Section 2(o) - Indian Telegraph Act, 1885; Section 7B - Existence of an arbitral remedy under the Indian Telegraph Act, 1885, will not oust the jurisdiction of the consumer forum - It would be open to a consumer to opt for the remedy of arbitration, but there is no compulsion in law to do so and it would be open to a consumer to seek recourse to the remedies which are provided under the Act of 1986, now replaced by the Act of 2019. (Para 16, 20) Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar, 2022 LiveLaw (SC) 221

Consumer Protection Act, 1986; Section 2(o) - Scope of expression 'service' discussed - a service of every description would fall within the ambit of the statutory provision. (Para 9) Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar, 2022 LiveLaw (SC) 221

Consumer Protection Act, 1986; Section 2(1)(g) - Failure to obtain an occupancy certificate or abide by contractual obligations amounts to a deficiency in service - Consumers 'consumers' has right to pray for compensation as a recompense for the consequent liability (such as payment of higher taxes and water charges by the owners) arising from the lack of an occupancy certificate. (Para 21-22) Samruddhi Co-operative Society v. Mumbai Mahalaxmi Construction, 2022 LiveLaw (SC) 36

Consumer Protection Act, 1986; Section 21(b) - Revisional jurisdiction of the National Commission is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. (Para 9) Sunil Kumar Maity v. State Bank of India, 2022 LiveLaw (SC) 77

Consumer Protection Act, 2019 - Section 2(42) - Consumer Protection Act, 1986 - Section 2(o) - The insertion of the expression 'telecom services' in the definition which is contained in Section 2(42) of the Act of 2019 cannot, for the reasons which we have indicated be construed to mean that telecom services were excluded from the jurisdiction of the consumer forum under the Act of 1986 - Section 2(o) of the Act of 1986 wide enough to comprehend services of every description including telecom services. (Para 14, 20) Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar, 2022 LiveLaw (SC) 221

Consumer Protection Act, 2019 - Section 67 Proviso - Onerous condition of payment of 50% of the amount awarded will not be applicable to the complaints filed prior to the commencement of the 2019 Act. (Para 34) ECGC Ltd. v. Mokul Shriram EPC JV, 2022 LiveLaw (SC) 168

Insurance - The vehicle of the complainant (the insured) which was insured with Insurance Company was robbed. The next day, an FIR was registered by him. Accused were arrested and challan filed. Thereafter, the complainant lodged the insurance claim. The same was repudiated on the ground that there was a delay in intimating the Insurance Company about the occurrence of the theft. Though District Forum and State Consumer Commission allowed the complaint - NCDRC dismissed it by allowing insurer's revision petition. Allowing the appeal, the Supreme Court set aside the NCDRC order and upheld the State Commission order. Jaina Construction Company v. Oriental Insurance Company Ltd., 2022 LiveLaw (SC) 154

Monopolies and Restrictive Trade Practices Act, 1969; Section 12B - Section 12B of MRTP Act empowers the Commission to grant compensation only when any loss or damage is caused to a consumer as a result of a monopolistic, restrictive or unfair trade practice. (Para 124) B.B. Patel v. DLF Universal Ltd; 2022 LiveLaw (SC) 90

Monopolies and Restrictive Trade Practices Act, 1969; Section 2(u) - Unfair Trade Practice - Five ingredients to constitute an offence of unfair trade practice: (1) There must be a trade practice (within the meaning of section 2(u) of the Monopolies and Restrictive Trade Practices Act); (2) The trade practice must be employed for the purpose of promoting the sale, use or supply of any goods or the provision of any services;(3) The trade practice should fall within the ambit of one or more of the categories enumerated in clauses (1) to (5) of Section 36A; (4) The trade practice should cause loss or injury to the consumers of goods or services; (5) The trade practice under clause (1) should involve making a "statement" orally or in writing or by visible representation. (Para 20) B.B. Patel v. DLF Universal Ltd; 2022 LiveLaw (SC) 90