Introduction:
In today’s world, everyone is inter-dependent on one another for a living; no one can sustain the life in isolation. Whatever we do in the normal course of the day, we involve ourselves in transactions with others. These transactions lack compulsory legal bounding.
But, in order to evade the responsibility of another’s actions, our ever growing technological world enters into more and more legal contracts at every given moment. Even for smallest of the actions such as while creating a social media account, or while creating an account on the e- commerce platforms, to offline shopping stores; the businesses ask the consumers to agree upon their ‘terms and conditions’ even before they become a consumer of the business in true sense. But, these terms and conditions are often stagnant and are non- negotiable. The consumer takes the good/service agreeing to the terms and conditions set up by the business. Otherwise, he has to forgo the transaction.
This increased two main concerns in the minds of legal fraternity. One is the question of practicality. How much awareness of these terms and conditions lies with the user. They often end up ticked and agreed upon without a glance. The other being how fair are these terms; in particular towards the consumers given that the terms are non- negotiable. In this article let us try to dig deeper on the second issue, keeping in mind the first one. Up ahead we discuss the necessary terminology for basic understanding of this topic.
Consumer
The general understanding of the word ‘consumer’ means any person who purchases either goods/services for an amount agreed upon between him and the seller/ the service provider. As per Section 7 of the Consumer Protection Act, 2019 [1] (herein referred as Act of 2019); the word ‘consumer’ means any person who buys goods for a consideration or hires a service for a consideration for non- commercial purpose. Before the commencement of the Act of 2019, the Consumer protection Act, 1986 was in force. This act described the word consumer in a similar sense with that of today’s act; difference between both of them being that the Act of 2019, has enlarged the scope of the word ‘consumer’ to include consumers involved in online transactions. Along with that, protecting the rights of the people in this growing digital era.
Terms and Conditions
Usually, we come across businesses asking the consumers to agree upon certain ‘terms and conditions’ before even accessing their products. This trend lies mainly in the e-commerce business providers. These terms and conditions are usually the clauses. Which means that once the transaction occurs, the business would not bear any liability towards the consumer or any third person in relation of the subject/ essence of the transaction.
Traditionally, when the contracts happened, both the parties used to negotiate the terms of the contracts before agreeing upon them; but given the growing technological development, now a days; these terms and contracts are pre- decided by the businesses. The consumers agree without option so as to ensure the fulfillment of the transaction.
It has many-a–times come to the notice of the judicial system, that the corporate and e-commerce giants, took advantage of this innocence of the consumers. Henceforth, they took steps to ensure that new law comes into force so as to protect the interest of the consumers. This happens through ensuring that no ‘unfair terms’ go forth by the businesses which would make the consumer succumb to loss in future. Let us now look into these Unfair Terms.
Unfair Contract Terms
The Consumer Protection Act, 2019 under section 2(46) [2] defines an ‘unfair trade’ as a ‘contract where the business requires the consumer to
- Excessively deposit monetary values
- Imposes penalty upon the consumer for a disproportionate loss caused
- To terminate the contract without reasonable grounds thereby leaving the consumer in a disadvantaged spot’.
This explains that any terms in the contract that would lead to any potential loss of a consumer would be unfair and are not acceptable by the law.
Let us now, proceed to look into the rights of the consumers. And also, the remedies available to them in case of unfair terms put forth by the business.
RIGHTS OF CONSUMER AND REMEDIES AVAILABLE AGAINST UNFAIR TERMS
Consumer Rights
The Act of 2019, under section 2(9) [3], provides certain rights for the consumers so as to safe guard their interest, they are:
- The right to be protected against goods that are hazardous to life and property;
- The right to know about the quality, quantity, purity, standard and price of the goods/ services to be provided;
- The right to access a variety of goods/services at competitive pricing;
- The right to be heard and the right to seek redressal against the unfair trade practices or terms;
- The right of consumer awareness.
Remedies Available
Whenever, someone asks a consumer to agree upon any unfair terms in a transaction, then he can file a complaint with the District Commission; which is appointed under this act and has the jurisdiction to look into the matters where the consideration involved in up to one crore rupees[4].
Upon receiving a complaint by the commission, the commission shall hear the complainant before proceeding or rejecting it. Once proceeded, the admission of complaint has to happen within 21 days of filing of the complaint. Post that, the District Commissioner should summon the opposite party, and then conduct a judicial trial. On basis of the evidence put forth before them, they shall decide the matter within a period of three months from hearing both the parties. And in case, the case is such that it involves testing of any goods in the laboratory, then with in five months of time period. If it is proved that the transaction involves any unfair terms, then the District Commission shall order the opposite party to remove the defect; replace the goods; to return the consideration to the complainant; to pay compensation to the complainant for the loss suffered (any of them).
The parties within 45 days of order of the District Commissioner can approach the State Commission. If not satisfied then the National Commission (by depositing a part of the suit value/ the money involved in subject matter) in an appeal against the order of the District Commissioner.
Further Chapter VI of the Act of 2019, provides in a glimpse that not only the manufacturer/ the basic service provider, but everyone involved in the commercial chain until the consumer is offered the product/service, can be made liable under the act.
CONCLUSION
Thereby, as discussed above, the act provides a bunch of rights and remedies to the consumers against any unfair contract terms that they might be subjected to. What is important is that the consumers gain the awareness about such rights available to them. And furthermore, they ensure self- protection by approaching the concerned authorities for remedies in cases of distress.
References:
[1] (Consumer Protection Act, 2019 210422.pdf, n.d. Section 7)
[2] (The Consumer Protection Act, 2019 210422.pdf, n.d. Section 2(46))
[3] (The Consumer Protection Act, 2019 210422.pdf, n.d. Section 2(9))
[4] (The Consumer Protection Act, 2019 210422.pdf, n.d. Section 34)
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