Service Under Consumer Protection act, 2019

Service under consumer protection act, 2019 – According to Section 2(42) of the consumer protection act, 2019 the term “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,
• telecom,
• boarding 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.

The Apex Court in Indian Medical Association v. V.P. Shantha & others said that the definition of service in Section 2(1)(o) [now Section 2(42)] can be split up into three parts-

(i) The main part (explanatory in nature)

(ii) The inclusionary part (includes the provision of facilities in connection with banking, financing, etc.)

(iii) The exclusionary part (excludes rendering of any service free of charge or under a contract of personal service)

Deficiency –

According to Section 2(11) of the Consumer Protection Act, 2019, expression “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 and includes-

(i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and

(ii) deliberate withholding of relevant information by such person to the consumer.

In a case for deficiency in services, the onus of proof is on the complainant to prove the deficiency. Failure of the complainant to prove negligence on the part of service provider, held service provider not deficient in service.”

Section 39 of the Consumer Protection Act, 2019 provides for the correction of deficiencies in services or goods by awarding compensation or other means specified only when the Consumer Forum finds deficiency.

Services rendered Free of Charge

The Act defines a “consumer” as someone who purchases goods or avails services for a consideration, but it also includes someone who uses goods or services with the permission of the person who purchased such goods or services, for a consideration paid or promised, or under any system of deferred payment.

A consumer utilizing free services has the right to file a complaint under certain conditions:-

• If it is found to be defective or deficient in quality.
• If it provides free services with the intention of misleading consumers or promoting unfair competition.
• If a business provides a free service and advertises it in a misleading manner.
• If a free service provider is negligent in their duty of care, resulting in harm to the consumer.

In State of Orissa v. Divisional Manager, LIC, the complaint by special leave petition was brought before the Supreme Court under Section 2(1)(o) of the Consumer Protection Act, 1986 [currently Section 2(42) of the 2019 Act] and Article 136 of the Constitution of India, 1950. According to the Supreme Court, personal service implies the right to seek enforcement of such a right of contract under the Specific Relief Act. As the government provides services for free, government employees are excluded from suing the government for damages under the Consumer Protection Act. If a claim emerges for opposing the responder, he may file it in any other forum, but not under the Consumer Protection Act.

Service under a contract of Personal Service

A “contract of personal service” refers to a master-servant relationship and includes an obligation to obey directions in the task to be accomplished as well as its mode and manner of completion.

Essentials –

1. It involves the provider’s individual skills, expertise, and personal qualities.
2. It might be driven by personal relationships, trust, or mutual arrangements and may not include monetary transactions.
3. It includes an obligation of the servant to obey directions in the task to be accomplished as well as its mode and manner of completion.

In A.C. Modagar v. Crosswell Tailor, the complainant gave a pant piece for stitching and found the pant to be defective. The District Forum awarded Rs. 500/- for mental anguish and cloth cost. The State Commission dismissed the appeal and determined that service is a contract of personal service.The National Commission held that the State Commission’s decision was not suitable, thus it was set aside. The National Commission ruled that the reason for excluding the performance of service “under a contract of personal service” from the definition of “service” under the Act is self-evident. The master can dismiss such an employee at any time, and hence there is no need for the master to complain about the employee’s performance.

Applying the above test to the present case, it is clear that the petitioner was unable to exert any control or oversight over the respondent’s work. While cutting the material for stitching the pant or stitching it, the respondent was independent of any supervision or control of the petitioner. While performing his duties, the respondent was merely required to follow the petitioner’s instructions on the design of the pant but was not required to go any farther.

Distinction between Contract of Services and Contract of Personal Service

Contract of services – A contract for services refers to a contract in which one party agrees to provide service-professional or technical service to another in the performance of which he is not subject to detailed direction and control and uses his own knowledge and discretion.

Contract of Personal Service – A “contract of personal service” refers to a master-servant relationship and includes an obligation to obey directions in the task to be accomplished as well as its mode and manner of completion.

The Apex Court held in Kishori Lal v. Chairman, ESI Corporation that if an insurance company pays fees and charges to a medical practitioner under a scheme, such service is not free of charge and would be considered “service” under the Consumer Protection Act. The Court stated that the connection between a medical practitioner and a patient cannot be considered a “contract of personal service” since there is no relationship of master and servant between them, even if the relationship is one of mutual confidence and trust. It is a “contract for services”.

Relevant cases (Service) –Service Under Consumer Protection act, 2019

In U.P.S.E.B. v. Mona Confectionery Industries, the complaint fulfilled all paperwork but was denied an electrical connection. As a result, the factory could not be started. The State Commission granted compensation for the delay. In appeal, the National Commission ruled that there was no delay in providing the electric connection and that the Electricity Board and its personnel were not negligent or deficient in providing service.

The complaint in Consumer Protection Council v. The Ahmedabad Electricity Co. Ltd. concerned the affixation of defective metres at the consumer’s premises by the respondent company; however, assurance was given on behalf of the company that upon receipt of incorrect metre functioning, steps would be taken to have the metre properly tested and rectified or replaced if found defective. It was decided that the assurance provided was adequate to address any complaints customers may have on this issue.   

Related Post | Service Under Consumer Protection act, 2019

• Consumer Protection Councils
• Standard of Goods – Consumer Protection Act
• Consumer of Goods – Consumer Protection Act
• Rights and Duties of consumers | Consumer Movement
• Consumerism in India – Meaning | Need | Objects
• Political Notes
• RTI notes
• Law of Torts notes
• Legal History Notes

Reference Books | Service Under Consumer Protection act, 2019

1. Consumer Protection Act: A Commentary by G. B. Reddy
2. Commentary on the Consumer Protection Act by J. N. Barowalia
3. Consumer Protection Law by Dr.SC Tripathi
4. Consumer Protection (Law & Practice) by V. K. Agarwal

Source | Service Under Consumer Protection act, 2019

1. https://www.lexology.com
2. https://ncert.nic.in