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Monday, August 18, 2014

Amendment (2014) to Consumer Protection Act...Article .. opinion.

(Personal Opinion on the proposed amendments over Consumer Protection Act)

Amendments to the Consumer Protection Act are round the corner. Some of the new proposed amendments are able to cover a couple of lacunae which ought to have been addressed in the Consumer law. But under the guise of covering up such infirmities, blatant violation of the right to represent cannot be curtailed; but that is on the cards, which will be revealed on a closer look over the proposed amendments. So beware, all that glitters are not gold.

A new regulation - Consumer Protection (Procedure for allowing appearance of Agents or representatives or Voluntary Organisations before the Consumer Forum), Regulations, 2014 has been drafted by the Union Government and discussions are going on. Through this regulation, agents are allowed to present the case before the Consumer Forums. Just like lawyers, the agents/representatives/consumer activists can present the case for others. It is not clear, what are the criteria or checks and balances adopted to verify the credentials claimed by those persons who claims to fall under these categories. By way of a special power of attorney, it can be done.
By a bare reading, this provision may seem better to help the consumer. But we must bear in mind about the hard reality of state of affairs. Will there be any accountability for such persons ? Who will monitor their activities? Obviously, it is not the question of professional challenge to lawyers; it is a different aspect and do not want to discuss it here. But, despite of the presence of Bar Council and other disciplinary measures, there are reported incidents of lawyers duping clients. It’s not just a professional misconduct, in fact it points to the deterioration of values in the society. Right from the priests to school policemen, it is there.
But here, by allowing such agents, what is the benefit being availed to the litigant ? If the agent, on the basis of the Power of Attorney, act in accordance of his whims and fancies and even if attempt to defraud the client, what is the remedial measure ? No institutions such as Bar Council can intervene and it may remain only as a “black collar crime”.

The new proposed amendment in Section 13(8) read so:
The Court shall not allow the engagement of an advocate by either party to the complaint, unless the value of the goods and services & compensation claimed, if any, exceeds Rs. 5 lakh, provided, that the complainant may engage an expert if the complaint requires technical expertise.

Whereas in case of State Commission, the proposed amendment to Section 18(2) read so:
 No advocates will appear before the State Forum for any parties unless the billed value of goods/r services claimed in a complaint is fifty lakhs or above.

Whereas in case of National Commission, the proposed amendment to Section 22(3) read so:
Provided further that no advocates shall appear for any parties before the
National Forum unless the claim is above rupees one crore and fifty lakhs.

The reason for the new amendment to exclude lawyers in some of the above mentioned cases is to expedite the proceedings in the consumer courts and to avoid unnecessary delay.  If it is read at a stretch, one may feel that the one and only reason for the delay in consumer courts is the engagement of lawyers. Is it so?

Similar incidents of banning lawyers under the camouflage to expedite the proceedings are there. For example, as per section 17 of Welfare of Parents and Senior Citizens Act legal practitioners are not permitted to appear for applicants; whereas it allows to appoint a ‘person of his choice’. When the issue was challenged before the High Court of Kerala, [2013 KHC 2716] it was held that, no legislation can water down the mandatory provision under section 30 of the Advocates Act 1961 with effect from 15/6/11. So also, the provision in Family Court Act in connection with obtaining sanction for appointing lawyer of his own choice is also not now in existence. Therefore, whatever be the flimsy and silly reason raised by the ‘babus’ who draft the legislation, the wisdom of democracy may not allow it; so long as the section 30 of the Advocates Act remain intact.
The proposed amendment includes conferring a right upon the authority and they can act against those traders who are violating consumer rights and can impose administrative penalty. Besides, the authority can conduct investigations, either suo-motu or on a complaint, into violations of consumer rights and conduct search and seizure of documents/records/articles and other forms of evidence, summon delinquent manufacturers, advertisers and service providers to record oral evidence and direct production of documents and records. This apart, the authority can order recall of goods or withdrawal of services found to be unsafe or hazardous and order reimbursement of the price of the goods (or services) so recalled, to purchasers of such goods or services.
There are also steps to install a Central Consumer Protection Authority. The objective of the Central Authority will be to prevent the exploitation of consumers and violation of their rights and to promote, protect and enforce the rights of consumers. Cases can be resolved through mediation and conciliation, as per the new proposed amendment. Apart from appointing retired judges as the head of the consumer courts, the ministry was considering appointing members through the state public service commission at the state level and through the Union Public Service Commission at the national level. Currently, 621 district consumer fora, 35 state consumer commissions and the National Consumer Disputes Redressal Commissions at the apex level are functioning.
But one thing we must bear in mind. Whatever be the new amendments, if it is to be positively implemented, the right to represent and right to heard of a consumer need to be accepted. Mere figures of pending cases and delayed orders may not be a short cut to water down the fundamental right of being heard, in just and proper sense.

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