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CONSUMER COMPLAINT BEFORE NATIONAL COMMISSION

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CONSUMER COMPLAINT BEFORE NATIONAL COMMISSION
By: Mr. M. GOVINDARAJAN
April 6, 2021
All Articles by: Mr. M. GOVINDARAJAN       View Profile
  • Contents

National Commission

Section 53 of Consumer Protection Act, 2019 (‘Act’ for short) provides for the establishment of National Consumer Disputes Redressal Commission to be known as ‘National Commission’.   The National Commission shall ordinarily function at the National Capital Region and perform its functions at such other places as the Central Government may in consultation with the National Commission notify in the Official Gazette.  The Central Government may, by notification, establish regional Benches of the National Commission, at such places, as it deems fit.

Composition of National Commission

The National Commission shall consist of-

  • a President; and
  • not less than four and not more than such number of members as may be prescribed.

Sitting of National Commission

The President of the National Commission shall convene sittings of the National Commission as and when it may be necessary, and such sittings shall be notified by the National Commission

Jurisdiction of National Commission

The National Commission shall have jurisdiction to-

  • complaints where the value of the goods or services paid as consideration exceeds ₹ 10 crore;
  • complaints against unfair contracts, where the value of goods or services paid as consideration exceeds ₹ 100 crores;
  • appeals against the orders of any State Commission;
  • appeals against the orders of the Central Authority.

Complaint before National Commission

 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 National Commission.  The complaint may be filed by-

  • the consumer;
  •  any recognized consumer association, whether the consumer is a member of such association or not;
  •  one or more consumers, where there are numerous consumers having the same interest, with the permission of the National Commission, on behalf of, or for the benefit of, all consumers so interested; or
  • the Central Government, the Central Authority or the State Government.

Limitation

The National Commission shall not admit a complaint unless it is filed within 2 years from the date on which the cause of action has arisen.  A complaint may be entertained after the period of 2 years if the complainant satisfies the National Commission that he had sufficient cause for not filing the complaint within such period.  The National Commission in such cases records the reasons for condoning the delay.

Fee

The fee payable along with the complaint to be filed before National Commission is ₹ 7500/-.  The fee shall be payable in the form of crossed Demand Draft drawn on a nationalized bank or through a crossed Indian Postal Order in favor of the President of the Registrar of the National Commission.   The National Commission shall credit such amount of fee received by it to the Consumer Welfare Fund of the Central Government.

Procedure for filing complaint

A complaint shall be presented to the National Commission by the complainant in person or by his agent, or be sent by a registered post, addressed to that Commission, containing the following particulars-

  • the name, description and the address of the complainant;
  • the name, description and address of the opposite party or parties, as the case may be, so far as they can be ascertained;
  • the facts relating to the complaint and when and where it arose;
  • the documents in support of the allegations contained in the complaint;
  • the relief which the complainant claims.

Admission of complaint

On receipt of a complaint, the National Commission may, by order, admit the complaint for being proceeded with or reject the same.  The complaint shall not be rejected unless an opportunity of being heard has been given to the complainant.  The admissibility of the complaint shall ordinarily be decided within twenty-one days from the date on which the complaint was filed.   Where the National Commission does not decide the issue of admissibility of the complaint within the period so specified, it shall be deemed to have been admitted.

Reference to mediation

At the first hearing of the complaint after its admission, or at any later stage, if it appears to the National Commission that there exists elements of a settlement which may be acceptable to the parties, except in such cases as may be prescribed, it may direct the parties to give in writing, within five days, consent to have their dispute settled by mediation.  Where the parties agree for settlement by mediation and give their consent in writing, the National Commission shall, within 5 days of receipt of such consent, refer the matter for mediation.

Disposal of complaint

  •  The National Commission shall, on admission of a complaint, or in respect of cases referred for mediation on failure of settlement by mediation, proceed with such complaint.
  • Where the complaint relates to any goods, the National Commission shall-
  1. refer a copy of the admitted complaint, within twenty-one days from the date of its admission to the opposite party mentioned in the complaint directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by it;
  2.  if the opposite party on receipt of a complaint referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Commission, proceed to settle the consumer dispute in the manner specified in clauses (c) to (g);
  3.  if the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods-
  • The National Commission may direct the complainant to provide one or more than one sample of the goods in clean containers with stopper properly fixed on them for the purposes of testing or analysis.
  • On receiving the samples of such goods,  the National Commission shall seal it and fix labels on the containers carrying the following information-
  • the name and address of the appropriate laboratory to whom sample shall be sent for analysis and test;
  • the name and address of the National Commission;
  • the case number; and
  • the official seal of the National Commission.
  • The sealed sample shall be sent to the recognized laboratory by the National Commission.
  • The recognized laboratory shall, after receiving sealed sample and examining it, shall forward its report to the National Commission within 45 days or within such extended time as may be granted by the National Commission, specifying the nature of the defect and date of submission of report.
  1. before any sample of the goods is referred to any appropriate laboratory require the complainant to deposit to the credit of the Commission such fees as may be specified, for payment to the appropriate laboratory for carrying out the necessary analysis or test in relation to the goods in question;
  2.  remit the amount deposited to its credit under clause (d) to the appropriate laboratory to enable it to carry out the analysis or test mentioned in clause (c) and on receipt of the report from the appropriate laboratory, it shall forward a copy of the report along with such remarks as it may feel appropriate to the opposite party;
  3. if any of the parties disputes the correctness of the findings of the appropriate laboratory, or disputes the correctness of the methods of analysis or test adopted by the appropriate laboratory, require the opposite party or the complainant to submit in writing his objections with regard to the report made by the appropriate laboratory;
  4. give a reasonable opportunity to the complainant as well as the opposite party of being heard as to the correctness or otherwise of the report made by the appropriate laboratory and also as to the objection made in relation thereto under clause (f) and issue an appropriate order.
  • The National Commission shall, if the complaint admitted by it relates to goods in respect of which the procedure specified cannot be followed, or if the complaint relates to any services,-
  • refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the National Commission;
  •  if the opposite party, on receipt of a copy of the complaint, denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the National  Commission, it shall proceed to settle the consumer dispute-
  • on the basis of evidence brought to its notice by the complainant and the opposite party, if the opposite party denies or disputes the allegations contained in the complaint, or
  • ex parte on the basis of evidence brought to its notice by the complainant, where the opposite party omits or fails to take any action to represent his case within the time given by the Commission;
  • decide the complaint on merits if the complainant fails to appear on the date of hearing.
  • Every complaint shall be heard by the National Commission on the basis of affidavit and documentary evidence placed on record.
  • Where an application is made for hearing or for examination of parties in person or through video conferencing, the National Commission may, on sufficient cause being shown, and after recording its reasons in writing, allow the same.
  • Every complaint shall be disposed of as expeditiously as possible and endeavor shall be made to decide the complaint within a period of 3 months from the date of receipt of notice by opposite party where the complaint does not require analysis or testing of commodities and within 5 months if it requires analysis or testing of commodities.
  • No adjournment shall ordinarily be granted by the National Commission unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by the Commission.  The National Commission shall make such orders as to the costs occasioned by the adjournment as may be specified by regulations.
  • Where the National Commission on an application by a complainant or otherwise, is of the opinion that it involves the larger interest of consumers, it may direct any individual or organization or expert to assist the National Commission or the State Commission, as the case may be.
  • In the event of a complaint being disposed of after the period so specified, the National Commission shall record in writing, the reasons for the same at the time of disposing of the said complaint.
  • Where during the pendency of any proceeding before the District Commission, if it appears necessary, it may pass such interim order as is just and proper in the facts and circumstances of the case.
  •  The National Commission may also declare any terms of contract, which is unfair to any consumer to be null and void.

Service of notices

All notices, required by this Act to be served, shall be served by delivering or transmitting a copy thereof by registered post acknowledgment due addressed to opposite party against whom complaint is made or to the complainant by speed post or by such courier service, approved by the National Commission, or by any other mode of transmission of documents including electronic means.

The notice required by this Act may be served on an electronic service provider at the address provided by it on the electronic platform from where it provides its services as such and for this purpose, the electronic service provider shall designate a nodal officer to accept and process such notices.

When an acknowledgment or any other receipt purporting to be signed by the opposite party or his agent or by the complainant is received by the the National Commission, or postal article containing the notice is received back by  the National Commission, with an endorsement purporting to have been made by a postal employee or by any person authorized by the courier service to the effect that the opposite party or his agent or complainant had refused to take delivery of the postal article containing the notice or had refused to accept the notice by any other means) when tendered or transmitted to him, the National Commission shall declare that the notice has been duly served on the opposite party or to the complainant.

Where the notice was properly addressed, pre-paid and duly sent by registered post acknowledgment due, a declaration referred to in this sub-section shall be made notwithstanding the fact that the acknowledgment has been lost or misplaced, or for any other reason, has not been received by the National Commission within 30 days from the date of issue of notice.

All notices required to be served on an opposite party or to complainant,  shall be deemed to be sufficiently served, if addressed in the case of the opposite party, to the place where business or profession is carried on, and in case of the complainant, the place where such person actually and voluntarily resides.

Powers of National Commission

The National Commission shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely:-

  •  the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;
  •  requiring the discovery and production of any document or other material object as evidence;
  •  receiving of evidence on affidavits;
  •  the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
  •  issuing of commissions for the examination of any witness, or document; and
  • any other matter which may be prescribed by the Central Government.

The National Commission shall have power to require any person-

  • to produce before it such book, account, document or commodity which is in the custody or under the control of such person, if it is required for the purposes of any proceedings before it, and allow the same to be examined and kept by such officer of the Commission as it may specified;
  • to furnish to the above officer such information as may be required for the purposes of any proceedings before it.

Where during any proceedings under this Act, the National Commission, has any ground to believe that any book, paper, commodity or document which may be required to be produced in such proceedings, are being or may be, destroyed, mutilated, altered, falsified or secreted, it may, by written order, authorize any officer to exercise the power of entry and search of any premises, and seizure of any book, paper, document or commodity as may be required for the purposes of such proceeding.  Such seizure shall be communicated to the National Commission, as soon as it is made or within a period not exceeding 72v hours of making such seizure after specifying the reasons in writing for making such seizure.   The National Commission, on examination of such seized documents or commodities may order the retention thereof or may return it to the party concerned.

Findings of National Commission

Where the National Commission is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services or any unfair trade practices, or claims for compensation under product liability are proved, it shall issue an order to the opposite party directing him to do one or more of the following, namely:-

  • to remove the defect pointed out by the appropriate laboratory from the goods in question;
  • to replace the goods with new goods of similar description which shall be free from any defect;
  • to return to the complainant the price, or, as the case may be, the charges paid by the complainant along with such interest on such price or charges as may be decided;
  • to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party; the National Commission shall have the power to grant punitive damages in such circumstances as it deems fit;
  • to pay such amount as may be awarded by it as compensation in a product liability action
  • to remove the defects in goods or deficiencies in the services in question;
  • to discontinue the unfair trade practice or restrictive trade practice and not to repeat them;
  • not to offer the hazardous or unsafe goods for sale;
  • to withdraw the hazardous goods from being offered for sale;
  • to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature;
  • to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently; the minimum amount of sum so payable shall not be less than twenty-five per cent. of the value of such defective goods sold or service provided, as the case may be, to such consumers;
  •  to issue corrective advertisement to neutralise the effect of misleading advertisement at the cost of the opposite party responsible for issuing such misleading advertisement;
  •  to provide for adequate costs to parties; and
  • to cease and desist from issuing any misleading advertisement.

Order

Every order made by the National Commission shall be signed by the President and the member who conducted the proceeding. Where the order is made as per majority opinion such order shall also be signed by the other member.

Difference of opinion

In any proceeding conducted by the President and a Member and if they differ on any point or points, they shall state the point or points on which they differ and refer the same to another member for hearing on such point or points and opinion of the majority shall be the order of the National Commission.  The other member shall give his opinion on such point or points referred to him within a period of one month from the date of such reference.

Setting aside ex-parte order

Where an order is passed by the National Commission ex parte, the aggrieved party may make an application to the Commission for setting aside such order.

Review

The National Commission shall have the power to review any of the order passed by it if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within thirty days of such order.

Finality of the order

 Every order of the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final.

Enforcement of the order

Every order made by the National Commission shall be enforced by it in the same manner as if it were a decree made by a Court in a suit before it and the provisions of Order XXI of the First Schedule to the Code of Civil Procedure, 1908 shall, as far as may be, applicable, subject to the modification that every reference therein to the decree shall be construed as reference to the order made under this Act.

Penalty

Whoever fails to comply with any order made by the National Commission, as the case may be, shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to 3 years, or with fine, which shall not be less than ₹ 25000/-, but which may extend to ₹ 1 lakh, or with both.

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the National Commission shall have the power of a Judicial Magistrate of first class for the trial of offences and on conferment of such powers, the National Commission shall be deemed to be a Judicial Magistrate of first class for the purposes of the Code of Criminal Procedure, 1973

  • The offences shall be tried summarily by the National Commission.

An appeal shall lie, both on facts and on law.  Every appeal under this section shall be preferred within a period of 30 days from the date of order of the National Commission to the Supreme Court.  The Supreme Court may entertain an appeal after the expiry of the said period of 30 days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period of thirty days.

Appeal to National Commission

Any person aggrieved by the order of State Commission may prefer an appeal against such order to the National Commission within 30 days from the date of order.  The National Commission shall entertain an appeal after 30 days if sufficient cause is shown for not filing it within the said period.

The appellant is to deposit 50% of the amount order by the State Commission.  An appeal shall lie to the National Commission from any order passed in appeal by any State Commission, if the National Commission is satisfied that the case involves a substantial question of law.

Procedure in disposal of appeal

  • A Memorandum shall be presented by the appellant or his authorized agent to the National Commission in person or sent by registered post addressed to the National Commission.
  • Every memorandum shall preferably be typed, or be in legible handwriting, and shall set forth concisely under distinct heads, the grounds of appeal without any argument or narrative and such grounds shall be numbered consecutively.
  • The memorandum shall be accompanied by a crossed Demand Draft as specified in rule 16, a certified copy

of the order of the State Commission appealed against and such of the documents as may be required to support grounds of appeal mentioned in the memorandum.

  • When the appeal is presented after the expiry of the period of limitation the memorandum shall be accompanied by an application supported by an affidavit setting forth the facts on which the appellant relies upon to satisfy the National Commission that he has sufficient cause for not preferring the appeal within the period of limitation.
  • The appellant shall submit four copies of the memorandum to the National Commission for official purposes.
  • In an appeal involving a question of law, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
  • Where the National Commission is satisfied that a substantial question of law is involved in any case, it shall formulate that question and hear the appeal on that question.
  • The appeal shall be heard as expeditiously as possible and every endeavor shall be made to dispose of the appeal within a period of 90 days from the date of its admission.
  •  No adjournment shall ordinarily be granted by the National Commission unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by National Commission.
  • The National Commission shall make such orders as to the costs occasioned by the adjournment, as may be specified by regulations.
  • In the event of an appeal being disposed of after the period of 90 the National Commission shall record in writing the reasons for the same at the time of disposing of the said appeal.

Appeal against the order of National Commission

Any person, aggrieved by an order made by the National Commission may prefer an appeal against such order to the Supreme Court within a period of 30 days from the date of the order.   The Supreme Court may entertain an appeal after the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing it within that period.  No appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited 50% of that amount.

 

By: Mr. M. GOVINDARAJAN - April 6, 2021

 

 

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