comsumar protection commentry



CONSUMER PROTECTION ACT, 1986

Section 2 - Definitions

Definitions.—
(1) In this Act, unless the context otherwise requires,—
*[(a) "appropriate laboratory" means a laboratory or organisation—
(i) recognised by the Central Government;
(ii) recognised by a State Government, subject to such guidelines as may be prescribed by the Central Government in this behalf; or
(iii) any such laboratory or organisation established by or under any law for the time being in force, which is maintained, financed or aided by the Central Government or a State Government for carrying out analysis or test of any goods with a view to determining whether such goods suffer from any defect;]
**[(aa) "branch office" means—
(i) any establishment described as a branch by the opposite party; or
(ii) any establishment carrying on either the same or substantially the same activity as that carried on by the head office of the establishment;]
(b) "complainant" means—
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or
(iii) the Central Government or any State Government; or 
*[(iv) one or more consumers, where there are numerous consumers having the same interest;] 
**[(v) in case of death of a consumer, his legal heir or representative;] who or which makes a complaint;
(c) "complaint" means any allegation in writing made by a complainant that—
***[(i) an unfair trade practice or a restrictive trade practice has been adopted by @[any trader or service provider];]
(ii) @@[the goods bought by him or agreed to be bought by him] suffer from one or more defects;
(iii) @@@[the services hired or availed of or agreed to be hired or availed of by him] suffer from deficiency in any respect;
#[(iv) a trader or the service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price—
(a) fixed by or under any law for the time being in force;
(b) displayed on the goods or any package containing such goods;
(c) displayed on the price list exhibited by him by or under any law for the time being in force;
(d) agreed between the parties;]
*[(v) goods which will be hazardous to life and safety when used are being offered for sale to the public,—
(a) in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force;
(b) if the trader could have known with due diligence that the goods so offered are unsafe to the public;]
**[(vi) services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety;] 
with a view to obtaining any relief provided by or under this Act;
(d) "consumer" means any person who,—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) ***[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who *[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person **[but does not include a person who avails of such services for any commercial purpose];
***[Explanation.—For the purposes of this clause,"commecial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;]
(e) "consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint;
(f) "defect" means any fault, imperfection or shortcoming 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, express or implied, or] as is claimed by the trader in any manner whatsoever in relation to any goods;
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and 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;
(h) "District Forum" means a Consumer Disputes Redressal Forum established under clause (a) of section 9;
(i) "goods" means goods as defined in the Sale of Goods Act, 1930 (3 of 1930); 
*[(j) "manufacturer" means a person who—
(i) makes or manufactures any goods or parts thereof; or
(ii) does not make or manufacture any goods but assembles parts thereof made or manufactured by others; or
(iii) puts or causes to be put his own mark on any goods made or manufactured by any other manufacturer;]
**[(jj) "member" includes the President and a member of the National Commission or a State Commission or a District Forum, as the case may be;]
(k) "National Commission" means the National Consumer Disputes Redressal Commission established under clause (c) of section 9;
(l) "notification" means a notification published in the Official Gazette;
(m) "person" includes,—
(i) a firm whether registered or not;
(ii) a Hindu undivided family;
(iii) a co-operative society;
(iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not;
(n) "prescribed" means prescribed by rules made by the State Government, or as the case may be, by the Central Government under this Act;
*[(nn) "regulation" means the regulations made by the National Commission under this Act;']
**[(nnn) "restrictive trade practice" means a trade practice which tends to bring about manipulation of price or its conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include—
(a) delay beyond the period agreed to by a trader in supply of such goods or in providing the services which has led or is likely to lead to rise in the price;
(b) any trade practice which requires a consumer to buy, hire or avail of any goods or, as the case may be, services as condition precedent to buying, hiring or availing of other goods or services;]
(o) "service" means service of any description which is made available to potential ***[users and includes, but not limited to, the provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, @[housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
@@[oo] "spurious goods and services" mean such goods and services which are claimed to be genuine but they are actually not so;]
(p) "State Commission" means a Consumer Disputes Redressal Commission established in a State under clause (b) of section 9;
(q) "trader" in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof;
*[(r) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:—
(1) the practice of making any statement, whether orally or in writing or by visible representation which,—
(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;
(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof:
Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;
(viii) makes to the public a representation in a form that purports to be—
(i) a warranty or guarantee of a product or of any goods or services; or
(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;
(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;
(x) gives false or misleading facts disparaging the goods, services or trade of another person.
Explanation.—For the purposes of clause (1), a statement that is—
(a) expressed on an article offered or displayed for sale, or on its wrapper or container; or
(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or
(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained;
(2) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement.
Explanation.—For the purpose of clause (2), "bargaining price" means—
(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or
(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;
(3) permits—
(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;
(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;
*[(3A) withholding from the participants of any scheme offering gifts, prizes or other items free of charge, on its closure the information about final results of the scheme. Explanation.—For the purposes of this sub-clause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time published, prominently in the same newspapers in which the scheme was originally advertised;]
(4) permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods;
(5) permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or services;]
*[(6) manufacture of spurious goods or offering such goods for sale or adopting deceptive practices in the provision of services.]
(2) Any reference in this Act to any other Act or provision thereof which is not in force in any area to which this Act applies shall be construed to have a reference to the corresponding Act or provision thereof in force in such area.
____________________________
* Subs. by Act 50 of 1993, sec. 2, for clause (a) (w.r.e.f. 18-6-1993). 
** Ins. by Act 50 of 1993, sec. 2 (w.r.e.f. 18-6-1993).
* Ins. by Act 50 of 1993, sec. 2 (w.r.e.f. 18-6-1993). 
** Ins. by Act 62 of 2002, sec. 2 (w.e.f. 15-3-2003). 
*** Subs. by Act 50 of 1993, sec. 2, for sub-clause (i) (w.r.e.f. 18-6-1993). 
@ Subs. by Act 62 of 2002, sec. 2, for "any trader" (w.e.f. 15-3-2003). 
@@ Subs. by Act 50 of 1993, sec. 2, for "the goods mentioned in the complaint" (w.r.e.f. 18-6-1993). 
@@@ Subs. by Act 50 of 1993, sec. 2, for "the services mentioned in the complaint" (w.r.e.f. 18-6-1993). 
# Subs. by Act 62 of 2002, sec. 2, for sub-clause (4) (w.e.f. 15-3-2003). Sub-clause (iv), before substitution, stood as under: 
"(iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods;".
* Subs. by Act 62 of 2002, sec. 2, for sub-clause (v) (w.e.f. 15-3-2003). Earlier sub-clause (v) was inserted by Act 50 of 1993, sec. 2 (w.r.e.f. 18-6-1993). Sub-clause (iv), before substitution by Act 62 of 2002, stood as under:
"(v) goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods,".
** Sub-clause (vi) along with sub-clauses (iv) and (v) subs. for clauses (iv) and (v) by Act 62 of 2002, sec. 2 (w.e.f. 15-3-2003). 
*** Subs. by Act 50 of 1993, sec. 2, for "hires" (w.r.e.f. 18-6-1993).
* Subs. by Act 50 of 1993, sec. 2, for "hires" (w.r.e.f. 18-6-1993). 
** Added by Act 62 of 2002, sec. 2 (w.e.f. 15-3-2003). 
*** Subs. by Act 62 of 2002, sec. 2, for Explanation. Explanation, before substitution, stood as under:
"Explanation.—For the purposes of sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;".
@ Ins. by Act 50 of 1993, sec. 2 (w.r.e.f. 18-6-1993).
* Subs. by Act 62 of 2002, sec. 2, for clause (j) (w.e.f. 15-3-2003). Clause (j), before substitution, stood as under: '(j) "manufacturer" means a person who—
(i) makes or manufactures any goods or parts thereof; or
(ii) does not make or manufacture any goods but assembles parts thereof made or manufactured by others and claims the end product to be goods manufactured by himself; or
(iii) puts or causes to be put his own mark on any goods made or manufactured by any other manufacturer and claims such goods to be goods made or manufactured by himself;
Explanation.—Where a manufacturer despatches any goods or part there of to any branch office maintained by him, such branch office shall not be deemed to be the manufacturer even though the parts so despatched to it are assembled at such branch office and are sold or distributed from such branch office;'.
** Ins. by Act 50 of 1993, sec. 2 (w.r.e.f. 18-6-1993).
* Subs. by Act 62 of 2002, sec. 2, for clause (nn) (w.e.f. 15-3-2003). Earlier clause (nn) was inserted by Act 50 of 1993, sec. 2 (w.r.e.f. 18-6-1993). Clause (nn), before substitution by Act 62 of 2002, stood as under:
'(nn) "restrictive trade practice" means any trade practice which requires a consumer to buy, hire or avail of any goods or, as the case may be, services as a condition precedent for buying, hiring or availing of other goods or services;'.
** Clause (nnn) along with clause (nn) subs. for clause (nn) by Act 62 of 2002, sec. 2 (w.e.f. 15-3-2003). 
*** Subs. by Act 62 of 2002, sec. 2, for "users and includes the provision of" (w.e.f. 15-3-2003). 
@ Ins. by Act 50 of 1993, sec. 2 (w.r.e.f. 18-6-1993). 
@@ Ins. by Act 62 of 2002, sec. 2 (w.e.f. 15-3-2003).
* Subs. by Act 50 of 1993, sec. 2, for clause (r) (w.r.e.f. 18-6-1993).
* Ins. by Act 62 of 2002, sec. 2 (w.e.f. 15-3-2003).
SYNOPSIS
1. General
2. Unless the Context Otherwise Requires
3. Explanation
4. Proviso
5. Appropriate Laboratory
6. Complainant
7. Complaint
8. Consumer
(a) Consumers of housing facilities
(b) Consumers of banking services
(c) Consumers of medical services
(i) Patients of the government hospitals
(ii) Patients of the private hospitals, nursing homes and private practitioners
(iii) The controversy between government hospitals and private hospitals vis-a-vis consumers under the Act
(d) Consumers of railway services
(e) Consumers of electricity services
(f) Consumers of insurance services
(g) Consumers of educational facilities
(h) Consumers of courier and carrier services
(i) Consumers of Gas/L.P.G. services
(j) Consumers of telephone services
(k) Consumers of miscellaneous services
9. Consumer Dispute
10. Defect
11. Deficiency
(a) Deficiency in housing services
(b) Deficiency in insurance services
(c) Deficiency in banking and financial services
(d) Deficiency in railway and transport services
(e) Deficiency in the courier/carrier services
(f) Deficiency in telephone and communication services
(g) Deficiency in electricity services
(h) Deficiency in transport and allied services
(i) Deficiency in hospital and medical services
(j) Deficiency in Gas/L.P.G. services
(k) Deficiency in airlines services
(l) Deficiency in miscellaneous services
12. District Forum, State Commission and National Commission
13. Goods
14. Manufacturer
15. Notification
16. Person
17. Prescribed
18. Service
(a) Housing services
(b) Medical services
(c) Electricity services
(d) Air services
(e) Courier services
(f) Gas/L.P.G. services
(g) Banking services
(h) Education services
(i) Insurance services
(j) Railway services
(k) Transport services
(l) Telephone services
19. Trader
20. Unfair Trade Practice
Comments
1. General
It is well-settled principle of interpretation that when definition clause is added to an Act, the definitions of the words given therein merely define the meaning of the words to make the terms definite in which these are used in various sections of the Act. If in the definition, the word 'means' is used, it implies the exhaustive definition and if word 'includes' is used, it implies that it includes certain matters which ordinary definition of the word might not have included. It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of the Act. This rule of construction is only one element in deciding what the true import of the enactment is, to ascertain which, it is necessary to have regard to the purpose behind the particular provision and its setting in the scheme of the Statute. The presumption that the same words are used in the same meaning is, however, very slight, and it is proper if sufficient reasons can be assigned to construe a word in one part of an Act in different sense from that what it bears in another part of an Act.1
The use of the word 'shall' in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of a statute are punctiliously followed, the proceeding or the outcome of the proceeding would be invalid. On the other hand, it is not always correct to say that where the word 'may' has been used, the statute is only permissible or directory in the sense that non-compliance with those provisions will not render the proceeding invalid.2 The word 'may' generally does not mean 'must' or 'shall'. But it is well-settled that the word 'may' is capable of meaning 'must' or 'shall' in the light of the context. Where the discretion is conferred upon a public authority coupled with an obligation, the word 'may' which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word 'may' out of deference to the high status of the authority on whom the power and the obligations are intended to be conferred and imposed.3
It is true that an artificial definition may include a meaning different from or in excess of the ordinary acceptation of the word which is the subject of definition, but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended. Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of the word defined.4 The purpose of the General Clauses Act is to place in one single statute different provisions as regards interpretations of words and legal principles which would otherwise have to be specified separately in many different Acts and Regulations. Whatever the General Clauses Act says, whether as regards the meanings of words or as regards legal principles, has to be read into every statute to which it applies.5
The frame of any definition, more often than not, is capable of being made flexible. But the precision and certainty in law requires that it should not be made loose and should be kept tight as far as possible.6 It is not correct to gives as wide a meaning as possible to terms used in a statute simply because the statute does not define an expression. The correct rule is that courts have to endeavour to find out the exact sense in which the words have been used in a particular context. They are entitled to look at the statute as a whole and give an interpretation in consonance with the purposes of the statute and what logically follows from the terms used. They are to avoid absurd results.7 It is not a sound rule of interpretation to seek the meaning of words used in an Act, from the definition clause of other statutes. The definition of an expression in one Act must not be imported into another.8 The interpretation given to the words used under Income Tax Act can be used for interpreting the words under the Ceiling Act, as the objects of both the Acts are similar.9
The Consumer Protection Act, 1986 is a social benefit oriented legislation and, therefore, the court has to adopt a constructive approach while construing the provisions of the Act. To begin with the Preamble of the Consumer Protection Act, 1986 which can afford useful assistance to ascertain the legislative intention, it was enacted, 'to provide for the protection of the interests of consumers'. Use of the word 'protection' furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled law that a Preamble cannot control otherwise plain meaning of a provision. In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the State to intervene and protect interests of the consumers have become a haven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to be stated. The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy... A scrutiny of various definitions such as 'consumer', 'service', 'trader', 'unfair trade practice' indicates that legislature has attempted to widen the reach of the Act. Each of these definitions are in two parts, one explanatory and the other inclusive. The explanatory or the main part itself uses expressions of wide amplitude indicating clearly its wide sweep then its ambit is widened to such things which otherwise would have been beyond its natural import... The provisions of the Consumer Protection Act thus have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit oriented legislation. The primary duty of the court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and is not contrary to attempted objective of the enactment.10
The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute, and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the definition clause declares that they shall include.11 In interpreting a social welfare legislation one should not make a narrow approach but should be guided by the principles of 'benevolent interpretation' which will help to promote and achieve the object and purpose of the Act, i.e., to protect the interests of consumers and suppress the evil sought to be remedied by the statute namely the unscrupulous exploitation of consumers. The main part of the definition of the expression 'service' is couched in the widest possible language and the mere fact that a particular form of arrangement for provision of a facility does not fall within any of the specified categories enumerated in the inclusive part of the definition is absolutely of no consequence as long as the arrangement entered into between the parties is one of rendering 'service' as that expression is generally understood in common parlance.12
_________________________________________

1. Shamrao Vishnu Parulekar v. District Magistrate, Thana, AIR 1957 SC 23: 1957 (o) BLJR 1: (1957) 59 Bom LR 83: 1957 Cr LJ 5: (1956) 1 SCR 644.
2. State of Uttar Pradesh. v. Manbodhan Lal Srivastava, AIR 1957 SC 912.
3. State of Uttar Pradesh v. Jogendra Singh, AIR 1963 SC 1618.
4. Hariprasad Shivsanker Shukla v. A.D. Divelkar, AIR 1957 SC 121.
5. Chief Inspector of Mines v. Karam Chand Thaper, AIR 1961 SC 838.
6. Kalya Singh v. Genda Lal, AIR 1975 SC 1634.
7. Commissioner of Wealth Tax v. Officer-in-Charge (Court of Wards), Palgah, AIR 1977 SC 113.
8. Union of India v. R.C. Jain, AIR 1981 SC 951.
9. Sonia Bhatia (Km.) v. State of Uttar Pradesh, AIR 1981 SC 1274.
10. Lucknow Development Authority v. M. K. Gupta, AIR 1994 SC 787: III (1993) CPJ 7 (13-14) (SC).
11. Dilworth v. Commissioner of Stamps, 1899 AC 99; also refer to Regional Director, Employees' State Insurance Corporation v. High Land Coffee Works of P.F.X. Saldanha and Sons, 1991(3) SCC 617: JT 1991 (3) SC 325: 1991 (2) SCALE 221; Commissioner of Income Tax, A.P. v. Taj Mahal Hotel, Secunderabad, AIR 1972 SC 168: 1971(3) SCC 550; State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610: (1960) 62 Bom LR 553: (1960) I LLJ 251 (SC): (1960) 2 SCR 866.
12. Neela Vasant Raje v. Amogh Industries, III (1993) CPJ 261 (263) (NC): 1993 (III) CPR 343.

2. Unless the context otherwise requires
The expression 'unless the context otherwise requires' in section 2 of the Consumer Protection Act, 1986 implies that the definitions of various words and expressions given in this section should be followed generally; but if the context otherwise requires then the interpreter has the discretion to adopt such other meaning of the particular word or expression which is in harmony with the context of the expression and for this purpose sufficient flexibility is provided by the insertion of these words. The General Clauses Act is enacted in order to shorten language used in parliamentary legislation and to avoid repetition of the same words in the course of the each piece of legislation. Such an Act is not meant to give a hide-bound meaning to terms and phrases generally occurring in legislations. That is the reason why the definition section contains the words like 'unless there is anything repugnant in the subject or context'.13
__________________________________
13. N. Subramania Iyer v. Official Receiver, Quilon, AIR 1958 SC 1: (1958) 1 SCR 257.
3. Explanation
'Explanation' is an act of explaining or clearing from obscurity. The function of an explanation is to explain the meaning and effect of the main provision to which it is an explanation. The purpose of an explanation is to clear any doubt or ambiguity in main provision to which it is added. It must be remembered that the legislature adds explanation to a provision only where it deems it necessary to do so. It may be that the description of a provision (such as 'explanation') cannot be decisive of its true meaning or interpretation which must depend on the words used therein; but when two interpretations are sought to be put upon a provision, that which fits the description (explanation) which the legislature has chosen to apply to it, is according to sound cannons of construction, to be adopted provided it is consistent with the language employed, in preference to the one which attributes to the provision a different effect (exception) from what it should have according to its description by the legislature.14 Where explanation 2 to section 499, I.P.C. provides that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such, it has been held that there could be defamation of an individual person (as laid down in the section) and also of a collection of persons as such (as per the explanation).15
Explanation must be read so as to harmonise with and clear up any ambiguity in main section and cannot be so construed as to widen ambit of section.16 If on a true reading of an explanation it appears that it has widened the scope of the main section, effect must be given to legislative intent notwithstanding the fact that the legislature named that provision as an 'Explanation'. In such matters the courts have to find out the true intention of the legislature.17 It is true that the orthodox function of an 'explanation' is to explain the meaning and effect of the main provision to which it is an explanation and to clear up any doubt or ambiguity in it. But ultimately it is the intention of the legislature which is paramount and mere use of a label cannot control or deflect such intention.18 When the language of the explanation shows a purpose, then a construction consistent with that purpose must reasonably be placed upon it.19 An explanation, generally speaking, is intended to explain the meaning of certain phrases and expressions contained in a statutory provision. There is no general theory as to the effect and intendment of an 'explanation' except that the purposes and intendment of the 'explanation' are determined by its own words. An explanation; depending on its language, might supply or take away something from the contents of the provision. It is also true that an explanation may be introduced by way of abundant caution in order to clear any mental cobwebs surrounding the meaning of a statutory provision spun by interpretative errors and to place what the legislature considers to be the true meaning beyond controversy or doubt.20
_____________________________________________
14. State of Bombay v. United Motors (India) Pvt., AIR 1953 SC 252: (1953) 55 Bom LR 536: (1953) 4 SCR 1069: (1953) 4 STC 133 (SC).
15. Sahib Singh Mehra v. State of Uttar Pradesh, AIR 1965 SC 1451: 1965 Cr LJ 434: (1965) 2 SCR 823.
16. Bihta Co-operative Development and Cane Marketing Union Ltd. v. Bank of Bihar, AIR 1967 SC 389: (1967) 37 Comp Cas 98 (SC): (1967) 1 SCR 848.
17. Hiralal Ratan Lal v. State of Uttar Pradesh, AIR 1973 SC 1034: (1973) 1 SCC 216: (1973) 2 SCR 502: (1973) 31 STC 178 (SC).
18. Dattatraya Govind Mahajan v. State of Maharashtra, AIR 1977 SC 915: (1977) 2 SCC 548: (1977) 2 SCR 790.
19. State (Delhi Admn.) v. I.K. Nangia, AIR 1979 SC 1977: 1980 Cr LJ 834: (1980) 1 SCC 258: (1980) 1 SCR 1016.
20. Keshavji Ravji and Co. v. Commissioner of Income Tax, AIR 1991 SC 1806 (1818).
4. Proviso
When a 'proviso' is added to a section in an enactment, it qualifies or creates an exception to the general rule laid down in the section. Generally a 'proviso' is not interpreted as stating a general rule. The main function of a proviso is that it qualifies the general rule of the main enactment by providing an exception. The territory of a proviso is ordinarily to carve out an exception to the main enactment and to exclude something which otherwise would have been within the ambit of the section. However, in some cases, proviso is also added not as an exception or qualification to the main enactment, but as saving clause, and in such a case it will not be construed as controlled by the section. The cardinal rule of construction of the provisions of a section with a proviso is that the proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest. The true principle undoubtedly is that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause and proviso, taken and construed together is to prevail.21 It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other.22 It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso.23
The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso, would fall within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. The territory of a proviso, therefore, is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that it is its necessary effect.24 Unless the words are clear, the court should not so construe the proviso as to attribute an intention to the legislature to give with one hand and take away with another. To put it in other words, a sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two.25
As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. But provisos are often added not as exceptions or qualifications to the main enactment but as saving clauses in which cases they will not be construed as controlled by the section. The saving clauses are seldom used to construe Acts. These clauses are introduced into Acts which repeal others to safeguard rights which, but for the savings, would be lost.26 As has been observed by Craies on Statute Law, provisos are often inserted to allay fears or to remove misapprehensions.27 Where the main provision is clear its effect cannot be cut down by the proviso. But where it is not clear the proviso, which cannot be presumed to be a surplusage, can properly be looked into ascertain the meaning and scope of the main provision.28 It is well-settled principle of construction that unless clearly indicated, a proviso would not take away substantive rights given by the section or the sub-section.29
The proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso would be within that clause. It may ordinarily be presumed in construing a proviso that it was intended that the enacting part of the section would have included the subject-matter of the proviso. But the question is one of interpretation of the proviso, and there is no rule that the proviso must always be restricted to the ambit of the main enactment. Occasionally in a statute, a proviso is unrelated to the subject-matter of the preceding section, or contains matters extraneous to that section, and it may have then to be interpreted as a substantive provision, dealing independently with the matter specified therein and not as qualifying the main or the preceding section.30 It is cardinal rule of interpretation that a 'proviso' to a particular provision of a statute only embraces the field, which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to accept that deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect.31
_________________________________________
21. Maxwell's Interpretation of Statutes, 10th Edn., p. 162.22. Ram Narain Sons Ltd. v. Asstt. Commissioner of Sales Tax, AIR 1955 SC 765: (1955) 2 SCR 483: (1955) 6 STC 627 (SC).
23. Abdul Jabar Butt v. State of Jammu and Kashmir, AIR 1957 SC 281.
24. Commissioner of Income Tax, Mysore v. Indo Mercantile Bank Ltd., AIR 1959 SC 713: (1959) 36 ITR 1 (SC): (1959) Supp (2) SCR 256.
25. Tahsildar Singh v. State of Uttar Pradesh, AIR 1959 SC 1012: 1959 Cr LJ 1231: (1959) Supp (2) SCR 875.
26. Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596: (1962) 2 SCR 159.
27. Madanlal Fakirchand Dudhediya v. Shree Changdeo Sugar Mills Ltd., AIR 1962 SC 1543: (1963) 65 Bom LR 162: (1962) 32 Comp Cas 604 (SC): (1962) Supp 3 SCR 973.
28. Hindustan Ideal Insurance Co. Ltd. v. Life Insurance Corporation of India, AIR 1963 SC 1083: (1963) 2 SCR 56.
29. Madhu Gopal v. VI Additional District Judge, AIR 1989 SC 155: JT 1988 (4) SC 106: 1988 (2) SCALE 1273: (1988) 4 SCC 644: (1988) Supp 3 SCR 276.
30. Ishverlal Thakorelal Almoula v. Motibhai Nagjibhai, AIR 1966 SC 459: (1966) 0 GLR 233: (1966) 1 SCR 367.
31. A.N. Sehgal v. Raje Ram Sheoram, AIR 1991 SC 1406 (1414): 1991 (62) FLR 938: JT 1991 (2) SC 123: (1991) II LLJ 50 SC: 1991 (1) SCALE 601: (1991) 2 SCR 198 and Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal, AIR 1991 SC 1538 (1541): JT 1991 (2) SC 604: 1991 (1) SCALE 958: (1991) 3 SCC 442: (1991) 2 SCR 802: 1991 (2) UJ 337 (SC).
5. Appropriate Laboratory
Under clause (c) of sub-section (1) of section 13 of the Consumer Protection Act, 1986 where the complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed, and refer the sample so sealed to the appropriate laboratory alongwith a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum. Now the question arises what we mean by the term 'appropriate laboratory' used in this subsection. For this purpose, clause (a) of sub-section (1) of section 2 of the Consumer Protection Act defines the term 'appropriate laboratory' as under:
"appropriate laboratory" means a laboratory or organisation
(i) recognised by the Central Government;
(ii) recognised by a State Government, subject to such guidelines as may be prescribed by the Central Government in this behalf; or
(iii) any such laboratory or organisation established by or under any law for the time being in force which is maintained, financed or aided by the Central Government or a State Government for carrying out analysis or test of any goods with a view to determining whether such goods suffer from any defect.
In the above definition the word 'means' is used which implies that the definition is exhaustive. When Shetkari Sahakari Sangh Ltd. supplied 10,000 litres of furnace oil to Phanse Chemicals Private Ltd. on 12th October, 1989 and according to the purchasers, the oil delivered created serious problems at the sodium silicate furnace and since nothing was found to be wrong with the inside of the furnace the respondent closed the operation of the unit and sent the samples of furnace oil to the Indian Chemical Laboratory, Pune for analysis and the analysis report showed that the furnace oil contained about 54% to 64% bitumen and hence it was heavily adulterated, it was held by the National Commission that as it is a transaction of sale of goods and not of service, there has been non-compliance with the mandatory provision of section 13(1)(c) of the Consumer Protection Act regarding testing of goods alleged to be defective before the State Commission came to its findings that the furnace oil was adulterated.32 Where the complainant Om Prakash Mathur has filed complaint under the Consumer Protection Act alleging that he had purchased Birla White Cement from the respondent No. 2 Gupta Building Material Store for laying the floors of his house and after the floors had been laid and polished it was found that the floors were spotty and blackish at most places and even cracks developed in the floor after a few months and after inspecting the condition of the floor, the respondent No. 2 confirmed that the quality of the cement supplied for laying the floors was spurious and adulterated and offered to compensate the claimant to the extent of 50% of the cost of the white cement, it has been held that when it was not disputed before the District Forum that the Birla White Cement supplied to the complainant was spurious and of inferior quality, there was no necessity of following the procedure laid down in section 13(1) of the Act, namely taking a sample out of the cement used by the complainant and to get the report of the appropriate laboratory after analysis.33
Viewing sub-sections (1) and (2) of section 13 of the Consumer Protection Act, 1986 in a broader perspective, it seems plain that the law makers clearly contemplated two kinds of goods; namely those which are amenable to proper analysis or test in a laboratory and other which are not so. As regards the first, the procedure prescribed is under sub-section (1) mandating a reference to an appropriate laboratory. The other class is governed by sub-section (2) for which a different procedure is prescribed without any reference to such a laboratory. Consequently clauses (c) to (g) of sub-section (1) are attracted only in cases which cannot be determined except by a proper analysis or test thereof in a laboratory. They have no relevance to goods with regard to which such a procedure cannot be followed and consequently which come under the ambit of sub-section (2). Plainly enough a motor cycle is not to be chemically analysed and tested and the only procedure in the case of alleged defects therein, is governed by sub-section (2) of section 13 of the Consumer Protection Act.34 The proper growth of crops depends not only on good seed, but also on other agricultural operations, namely, (1) proper preparation of the land, (2) fertilization, (3) pest and disease control, (4) proper irrigation, and (5) climate and seasonal conditions. Merely because the crops are not good one cannot directly come to the conclusion that the seeds are not good. In order to prove that the seeds supplied were defective, the Assistant Director of Agriculture, who is the Seed Inspector appointed under section 13 of Seeds Act, 1966, should have taken samples of seeds either from complainants or from the suppliers, namely the appellants and got them analysed by the Seed Analyst. Having failed to do so, his inference based on the observation of inadequacy of pollens will not carry any conviction that the foundation seeds supplied to the complainants were defective.35
When it was not disputed before the District Forum that the cement supplied to the complainant was spurious and of inferior quality, there was no necessity of following the procedure laid down in section 13(1) of the Consumer Protection Act, 1986, namely taking a sample out of the cement used by the complainant and to send it to the appropriate laboratory for analysis.36 Where complainant Baby Benjamin Thushara filed a complaint before the State Commission alleging that on 24th April, 1989, when she sat on the European style closet, installed in her house, which was manufactured by the present appellant E.I.D. Parry (India) Ltd., it gave way and crumbled into numerous pieces having razor sharp edges which pieces penetrated into the flesh all along her buttocks and around anal and vaginal canal resulting in multiple injuries, the National Commission held that if the cost was of substandard quality, then the defect could be proved only by the laboratory test. In laboratory, it could be found if the material used in the manufacture of the closet in question was of sub-standard quality or not or it could withstand a weight upto 465 kgs. as claimed by the manufacturers. Without such a test, no conclusion can be reached about the quality of the material used in the manufacture of the disputed closet. Therefore, the State Commission was not right in not sending the pieces of the broken closet for laboratory analysis or test under section 13(1) of the Consumer Protection Act, 1986.37
Next question which arise for discussion is as to how the report of the appropriate laboratory is to be proved? Section 293 of the Code of Criminal Procedure, 1973 (2 of 1974) provides that the reports of certain government scientific experts are admissible per se without any formal proof, which section is reproduced below:
"Reports of certain Government Scientific Experts.—(1) Any document purporting to be a report under the hand of a Government Scientific Expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any enquiry, trial or other proceeding under this Code.
(2) The court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.
(3) Where any such expert is summoned by a court and he is unable to attend personally, he may, unless the court has expressly directed him to appear personally, depute any responsible officer working with him to attend the court, if such officer is conversant with the facts of the case and can satisfactorily depose in the court on his behalf.
(4) This section applies to the following Government Scientific Experts, namely:—
(a) any Chemical Examiner or Assistant Chemical Examiner to the Government;
(b) the Chief Inspector of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory; and
(f) the Serologist to the Government."
The list of the appropriate laboratories under the Consumer Protection Act, 1986 is given in Annexure in this book. It may, however, be remembered that the procedure to be followed by the Consumer Redressal Fora constituted under the Consumer Protection Act is not the same as followed by the Civil and Criminal Courts and the Consumer Redressal Fora are generally required to follow the 'summary procedure' for the disposal of the complaints. Where the report of the expert is cryptic and incomplete, it is open to the court to summon and examine the chemical examiner under sub-section (2) of section 293 of the Code of Criminal Procedure, 1973 and thereby satisfy himself that the results stated therein are correct, but the report should not be rejected outrightly.38
__________________________________________
32. Shetkari Sahakari Sangh Ltd. v. Phanse Chemicals Private Ltd., I (1993) CPJ 47(50) (NC).
33. Om Prakash Mathur v. Indian Rayon Industries Ltd., I (1992) CPJ 44 (45-46) (NC): 1992 (I) CPR 19.
34. Chaudhary Automobiles, Hissar v. Anil Kumar, I (1991) CPJ 104 (109-110) (Har).
35. Maharashtra Hybrid Seeds Co. Ltd. v. R. S. Bannimatti, I (1992) CPJ 248 (251) (Karn).
36. Om Parkash Mathur v. Indian Rayon Industries Ltd., I (1992) CPJ 197 (199) (NC): 1992 (I) CPR 19.
37. E.I.D. Parry (India) Ltd. v. Baby Benjamin Thushara, I(1992) CPJ 279 (283) (NC): 1992 (I) CPR 786.
38. Himachal Pradesh Administration v. Mst. Shiv Devi, AIR 1959 HP 3 (6): 1959 Cr LJ 448.
6. Complainant
Under clause (b) of sub-section (1) of section 2 of the Consumer Protection Act, the term 'complainant' means,—
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or
(iii) the Central Government or any State Government; or
(iv) one or more consumers, where there are numerous consumers having the same interest; or
(v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint.
In the above definition Parliament has used the word 'means', which implies that the definition of the term 'complainant' is exhaustive one. However, it has further been clarified in section 12 of the Act, wherein it is provided that a complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum, by,—
(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;
(b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;
(c) one or more consumers, where .there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or
(d) the Central or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general.
Who is a consumer? For this refer to note (8) with sub-head 'consumer' herein below where this term has been discussed in detail. Thus, any consumer who has purchased the goods or one or more consumers, where there are numerous consumers can file the complaint before the Consumer Redressal Fora and thus any one of them can be a complainant. In addition any recognised consumer association can be a complainant before the Consumer Forum irrespective of the fact whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not. This clearly indicates that the principle of public interest litigation or social action litigation has been incorporated in the Consumer Protection Act, 1986 to provide better protection of the interests of consumers in this country, and to get redress from,—
(a) an unfair trade practice or a restrictive trade practice adopted by any trader;
(b) the goods bought or agreed to be bought suffer from one or more defects;
(c) the services hired or availed of or agreed to be hired or availed of suffer from deficiency in any respect;
(d) charging of a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods, by a trader;
(e) offering for sale to the public goods, which will be hazardous to life and safety when used, in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods.
A complaint can be made before the Consumer Forum under the Consumer Protection Act only by the consumer of goods as defined in section 2(1)(d)(i) or by any voluntary consumer association registered under the Companies Act, 1956, and where the complainant is neither a consumer nor is a representative of any registered consumer association, it has been held that the complainant is not a complainant as defined in section 2(1)(b) of the Act.39 Since the petitioner is not a voluntary consumer organisation registered under any law in force in India, the petitioner Gulf-Trivandrum Air-Fare Forum cannot come within clause (d) of sub-section (1) of section 2 of the Consumer Protection Act. It was, however, contended for the petitioner that his client would be a 'consumer' as defined in sub-clause (i) of clause (d) of sub-section (1) of section 2 because it is an association of persons which constitutes a 'person' as defined in clause (m). It may be that the petitioner can be regarded as a 'person' for the purposes of the Act but in order to become a 'consumer' under clause (d)(ii) such person should have hired a service for consideration paid or promised or partly paid or partly promise
...

[Message clipped]  

Post a Comment

0 Comments