National Seminar. Emerging Trends in Consumerism in India

Transcription

1 National Seminar on Emerging Trends in Consumerism in India M.P. Law College, Aurangabad (M.S.) (August 27-28, 2011) The Centre for Consumer Studies, IIPA organized two day National Seminar on Emerging Trends in Consumerism in India on August 27-28, 2011 in collaboration with M. P. Law College Aurangabad, Maharashtra. Around 100 participants participated in the seminar which included academicians, lawyers, members from civil society organizations and students. The sub-themes of the seminar were: 1. Green Consumerism; 2. Consumerism and Advertisement; 3. Consumerism and Medical Profession; 4. Consumerism and Legal Profession. Around 52 papers were presented in two days in four technical sessions. Rangoli prepared by the students on the Seminar Dr. C. M. Rao, Principal, M. P. Law College, Aurangabad welcomed all the dignitaries and participants and introduced the theme of the seminar. He said that the issue of consumer protection is of universal importance as everybody in the world, rich or poor, is a consumer and gets cheated at some point of time by the malpractices prevailing in the market. So there is urgent need to deliberate on the 1

2 issue to raise awareness among all strata of the society. The teachers and students can play a major role in generating awareness among the society on the issue. Justice P.B. Reddi, Chairman Law Commission inaugurating the Seminar The Seminar was inaugurated by Hon ble Justice P. V. Reddi, Chairman, Law Commission of India. In his speech Justice P. V. Reddi, opined on various aspects of application of the Consumer Protection Act and the changes required in the Consumer Protection Act to meet the emerging challenges of consumerism. He said that the seminar which has been organised today of seminal importance as Consumer Protection and Consumer Welfare is essential for welfare of the nation and indicator of good governance. The consumers are uneducated lot without any protection, placed in an unequal position wherein they are unable to face the strong and mighty business. By the unscrupulous and unfair practices by the traders and service providers, the consumers are handicapped in many ways. The poor and uneducated are still more vulnerable and exploited class. This all mandated the creation of legal protection for the consumers. In era of globalisation consumer has very little option to bargain, the seller basically rules. Though new channels for purchase have been created through science and technology but those has given rise to new and challenging problems. These new problems which have arisen due to rapid scientific development need to be addressed and resolved by government, regulatory bodies and Civil Society to provide a better environment to the consumers. He said that the CPA has given new thrust to consumer protection and has given six substantive rights to consumers. It is a milestone in consumer movement and has provided new roadmap to consumerism. New jurisprudence has developed wherein even class action and action by NGO is possible. Under the Act action against the unfair and restrictive trade practices against the business can be initiated. The complaint can also be brought against defective goods, deficient 2

3 services and even against prices charged more than MRP. The definition of consumer and service is very wide. A three tier redressal mechanism has been established under the Act at the National, State and District levels to provide speedy, quick and inexpensive justice to the consumers. Councils have also under been created under the Act at three levels to provide solutions to the problems of the consumers. Besides CPA there are other legislations also provide for protection of consumers. The law cannot remain static; it has to be change with changing time and specific needs of the society and develop accordingly. The CPA has also undergone amendments thrice to evolve to the changing needs. More than two decades have passed after the enactment of the Act and now based on the experience, problem areas and the progress made there is need for a fresh introspection and accordingly changes need to be made. There is, however, no doubt that the establishment of forum at District level has been are boom to the society and has given relief to many aggrieved consumers for the services provided by the professionals and other statutory bodies as they are also come within the preview of the Act. The quasi judicial bodies under the Act are riddled with many problems which is causing delay and pendency. There is large pendency of cases on execution of orders though Act provides for high penalties which even include attachment of property and imprisonment. However, for attachment the order has to be sent to the collector which is a tardy procedure and there is no other back up procedure. The control over SCDRCs and forums has been vested with NCDRC and SCDRC exercises control over District Forums. This is a good provision but it needs to be studied to see where control is required more. The appointment of members also requires serious consideration. The payment of honorarium to the members also needs to be looked into as in many states the members are paid very less. Additional benches are also required for quick redressal of complaints as at many places the pendency is very high. ADR mechanism can also be a good alternative as it will reduce the burden on the consumer forums. Lokadalats also need to be held by District Forum and commission, for this provision is required to be introduced in law. 3

4 Justice Reddy lamented that inadequate implementation of laws in India is a major problem. Merely enacting more and more law is not sufficient it is required to be implemented properly and effectively. Under the CPA also it needs to be examined whether councils are meeting regularly, whether District Magistrate gets time to convene the meetings of District Council; all this needs serious considerations to make these councils more effective. There must be somebody to keep a watch over the service providers about deficiency and help the consumers. There is also need for more awareness at the grass root level and here the NGOs can play an important role. There are hardly any laboratories where the consumers can have easy access. These are some of the practical problems which need to be taken care by the government. Advertisement no doubt is major source of information to the consumers regarding the products and services available in the market. However, the misleading information which is being passed on to the consumers through these ads is becoming affecting the consumers right to information and choice. Such ads need to be dealt seriously and curbed for the benefit of the consumers. The Law commission regarding the ads has two agendas. Firstly, the morality and ethics of the society are to be taken care of in such misleading advertisement. For example, the advertisement where the massage parlours show nude photos of ladies and when objections are raised by ASCI they take the plea of freedom of expression and sex education need to be dealt strictly. Secondly, misleading advertisement by Babas where they claim that they can solve any problem regarding marriage, health problems, etc. by astrology. Herein the problem is whether astrology is a science and can be used to solve such problems. In the Consumer Forums the complaints against the medical profession are on the rise. The standard of care required has been laid down in Jacob Mathews and many other SC judgements. However there are various diversions in the applicability by the judges which requires to be reconciled. One of the major problems of the present day is over consumption. With the emergence of the consumer society the luxuries and wants are becoming needs and everybody desires to have more and more for himself without caring for the humanity as a whole. Thus there is urgent 4

5 need to adopt green consumerism and also deal with the disposal of the waste is more efficient way. Hon ble Justice V.R. Kingaonkar, Member, NCDRC addressing the participants Hon ble Justice V.R. Kingaonkar, Member, National Consumer Disputes Redressal Commission was the Guest of Honour on the occasion. Justice V.R. Kingaonkar highlighted the advantages of the Consumer Protection Act and the ways in which consumer disputes are decided. He said that the consumerism is not a new concept. It started since Donoghue V. Stevenson way back in 1932 wherein House of Lord held that manufacturer or trader has certain duties towards the buyer. Ralph Nadar who was the crusader in the consumer movement, started it in 1960 in US. It was John F. Kennedy who in 1962 introduced the Bill of Consumer Rights in U.S. Congress where there were four consumer rights viz. right to safety, right to choose, right to be informed, and right to be heard. Later four more rights which included right to satisfaction of basic needs, right to seek redressal, right to consumer education and right to a healthy environment were added to the list. It was after the adoption of the U.N Guidelines on Consumer Protection in 1985, most of developed and developing countries enacted the laws in respective countries to provide adequate protection to the consumers. He said that there is need to look at consumer protection from different angles. There are various provisions in the laws which do not keep consonance with common law for example section 30 of Advocates Act provides only advocates have right to represent before any court/fora. However, CPA allows anybody to represent which includes consumers, NGO and government. Two things need to be seen that the system under the Consumer Protection and Human Rights has to be distinguished with the general delivery system of country. Like applicability of Consumer Protection act to extra territorial jurisdiction cases like it has applied to 5

6 Ethopian airlines where it lifted cargo from India and delivered in any other country. The justice delivery system has to be given global interpretation. The CPA and allied laws gives umbrella protection to consumers so they need to be studied together and applied. In one of the cases advertisement was published which depicted that job would be given outside India and in caption it was written employer s guarantee. The student paid heavy fee to eventually find out that what was available was only the list of employers. The complaint was filed by one of the young man who was deceived by the misleading advertisement. The contention of the organisation was that we had not guaranteed job we have only guaranteed employer. It was held that the students have been deceived through misleading advertisement. The young people do not have experience and this is an easy way in which they can be cheated. As all were young students in search of job it was directed by National Commission that a compensation which was on a higher side be paid to them by the opposite party. Similarly advertisements like increase in height captioned as Big B are assurances of something magical and frustrate the consumer and are to be dealt severely. Then there are sales and combo offers which write words like upto in small words so that consumer does not know about it. In such sales substandard goods are sold. All these amount to unfair trade practices and wherein the complaints of such kind have gone before the quasi-judicial machinery they have been dealt with sternly. Medical profession comes under Consumer Protection Act as it is one of the services given for consideration by the doctors and hospitals. Due to this now the doctors have started following defensive practices wherein they get the tests done for small problems just to avoid their liability under CPA. This is causing a lot of hardship to the consumers. There is need to reconcile the rights of the consumers against the doctors and the need to protect the reputation of the doctor to avoid unnecessary conflict between the two. As a practice the name of the doctor should not be published in media unless he is proved guilty. Then there are quacks about whom the consumers should be informed to avoid harm to them. The laws of beneficial nature are effective only if implemented properly. In the CPA execution of orders is one of the major problems. Sometimes the service of notice also becomes a problem as the person is difficult to locate. 6

7 Talking on sustainable consumption he said, as regards green consumerism is concerned, there is need to change the attitude of consumers so that they can make difference in need and greed. The deliberations on such topics are important to clear our ideas and provide a platform to give suggestions which can provide valid input to the government. Martin Luther king has once said that we should either learn to live together as brothers or we are to perish as fools. The same is true even for the consumers, who need to be organised and be together otherwise they will perish on fools. Prof. (Dr.) R Venkat Rao, Vice Chancellor, National Law School of India University, Bangalore delivering the Keynote Address Prof. (Dr.) R Venkat Rao, Vice Chancellor, National Law School of India University, Bangalore delivered the Keynote Address. He said that Justice Ahmedi has said judicial activism is offshoot of common man s activism similarly consumerism is consumer s activism. He cited one of the cases of medical negligence in USA where a lady who had no problem had to go for the heart transplant. He said that the doctor, advocate and clinch man were once considered as noble men as generally people go to them only when they have suffering and distress and they try to ameliorate the sufferings of common man. But today the standards of morality and ethics have gone down so much that we are discussing deficiency in service in these fiduciary relationships. Now the private hospital are being told to reserve beds for poor people and give free treatment; similarly the private schools are to required to reserve 25% seats for BPL students under RTE Act. This is also being fought tooth and nail. Vindication of consumer rights is just the beginning but what is required is easy access to consumers to all services. Environmentalism is no more elitist what is required is that common man should be involved in it. Advertisements take the consumers for a ride. You have celebrity advertisements as that is an easy way to mislead people as everybody wants to become celebrity and so try to follow them. 7

8 The question is can law deal with every greed and avarice? It can never. The consumers are combination of three: victims, colluders and complainants. Nowadays life styles have become more important. The consumerism has become pejorative sense. There is need to reduce greed and luxuries and restrict to wants. At the end of the Inaugural Session dignitaries also released wallpapers prepared by student members of the Research Club of M. P. Law College on the sub-themes of the Seminar. Dignitaries releasing the wallpapers The seminar was divided in four sessions on Green Consumerism; Consumerism and Advertisement; Consumerism and Medical Profession; Consumerism and Legal Profession. In the first technical session on Green Consumerism Prof. Dr.Kesava Rao, Dean, Faculty of Law, Andhra University and Principal Dr. Ch. Sudhakara Babu, JKC College of Law, Guntur were resource persons for the session. Dr. Sudhakar Babu, spoke on nature friendly green products. He opined that Nature takes care of itself. Excessive wastes are generated from excessive wants and there is a need to control it. Thirteen papers were presented on various aspects of the sustainable and green consumerism. The papers on Green Consumerism highlighted that no doubt Consumption as Indicator of growth but uncontrolled consumerism is a threat to environment. Globalization and availability of goods and services have encouraged unsustainable consumption and the trend of use and throw is on increase. 3R- Reduce Reuse and Recycle need to be adopted to avoid over exploitation of natural resources both renewable and non-renewable. Irresponsible Consumption is not only putting stress 8

9 on environment but also reducing Gross Natural Happiness. UN Guidelines on Consumer Protection 1999 also now stress on sustainable consumption. However consumers now face a number of problems while adopting environmentally sound products. Papers also provided certain examples on how Green Trends can be increased like use of C.N.G., e-vehicles Pollution by motor vehicle. Green consumerism movement started from America in 1990 however, again disappeared because no suitable alternative appeared. The solution to the problem is simple, ethical, necessity based consumption avoiding advertisement impact and temptation. Thus there is need for government, business, civil society to take steps and provide consumers with alternatives to adopt to bring a change in their lifestyle. For this tracing consumers consumption patterns are also necessary Prof. Kesava Rao, Dean Faculty of Law, Andhra University addressing the participants For the second session on Advertisement and Consumerism, and Shri Prashant Godbole, Founder Ideas@work were the resource persons. Dr. V. Kesava Rao said that the advertisement is salesmanship. It includes any notice, label or wrapper and many more things which provide information regarding the product or service. He discussed various categories of advertisement and advertisement practices. Through number examples of Bargain sale, offering prizes, etc. he highlighted how consumers are cheated by advertisement. a of He highlighted provisions under various laws which prevent misleading ads. He also elaborated the definition of unfair trade practice under CPA which also includes within its ambit the misleading advertising. He said it Shri Prashant Godbole making the audiovisual presentation is duty of all the stakeholders viz. producers, traders, artists, media, etc. to see that the ads are not misleading and pass on correct information to the consumers. Shri Prashant Godbole presented the first hand view of advertisements from the 9

10 advertiser s point of view. He said that industry spends huge amount on advertisement. It involves a number of people like artist, producers, advocates and many professional who give a shape to the advertisement we come across. Through audiovisual presentations he presented some misleading advertisements which were banned and why. He also highlighted the role of ASCI in controlling content of advertisements. Eighteen papers were presented in the session. These papers drew attention to a number of important issues relating to advertising and its effect on consumers. in olden days advertisement was not available; it has originated with industrialization to popularise the products and to draw the attention of consumers. Advertisements have both positive and negative aspects. The misleading advertisement and unethical message are passing wrong information to the consumers and leading to consumer exploitation. There is need for regulatory mechanism to check unfair trade practices in advertising. It was also said that there is requirement of Pre Censor Committee before release of advertisement. The regulatory bodies like SEBI and ASCI need to play more proactive role in controlling the advertisements. There is requirement of suo-motu power for consumer forums and other regulatory bodies to control advertisement. One of the paper presenters also highlighted the effect of advertisement on the consumers of real estate wherein due to misleading advertisements many consumers have become victims of unfair trade practices. There are no clear laws on it. There is also need for a real estate regulator who should also take cognizance of such unfair trade practices. The third Session was on Medical Profession and Consumerism. Resource Persons for the session were Prof. (Dr.) A. Rajendra Prasad, Principal, Dr. B. R. Ambedkar College of law, Andhra University and Dr. Chaya Diwan, Government Medical College, Aurangabad. Prof. (Dr.) A. Rajendra Prasad presented the legal position regarding the medical negligence and duties of doctors. He said that the doctor-patient relation is a Contractual relationship. However, the doctor is also liable for negligence under the law of Prof. A. Rajendra Prasad, Principal, Dr. B. R. Ambedkar College of law, speaking on Medical Negligence 10

11 torts. Medical negligence as an act of commission or omission which a ordinary competent man is in the profession would not have committed or would not have failed to do. The test is of ordinary competent man. Neither very high nor very low competence is expected from the professional. Liability of Medical Professional is for compensation for the injury suffered by the patient. Medical Professional is required to have proper documentation and take informed consent from the patient before giving the treatment. Medical Profession no more a noble profession, it has become a service under the CPA and can be held guilty for deficiency in service. Dr. Chaya Diwan presented the doctor s point of view on the issue of medical negligence and the practical problems faced by doctors particularly in Govt. Hospitals while treating the patients. These Practical problems include lack of resources, over burden and sometimes the patient himself also contributes to the negligence. In such a scenario it is also required that the doctors should also be given some protection to prevent unnecessary harm to their reputation. It is important for both the doctors and patients to Dr. Chaya Diwan presented the doctor s point of view on medical negligence understand their responsibilities for a healthy Doctor-patient relationship. Thirteen papers presented in the session discussed the judicial trend in medical negligence, how Commercialization has affected medical profession, reasons for medical fraternity to go against interest of people and rights and duties of doctor and patients. There is constant increase in cases of medical negligence for which dearth of adequate medical facilities at hospitals and falling standards of professional competence are also the reasons. There is need for providing adequate remedies to the consumers for such deficiencies. One of the paper on Reasonable prices of drugs A demand for right to Health also discussed the effect of high pricing of drugs on consumers and need for Ethical code for prescription of generic 11

12 drugs. It was also emphasized that there is need for investigative machinery to look into such matters. Prof. S.S. Prakash, NLIU, Bhopal speaking on lawyers negligence The fourth Session was on Legal Profession and Consumerism. Prof. Advocate (Dr.) Santosh Shah from Kolhapur and Prof. S.S. Prakash from NLIU, Bhopal were the resource persons from the session. They discussed the Liabilities of the legal professionals under CPA, Torts and other laws. They also emphasized on the need for improving the Efficiency of lawyers and strengthening the provisions of law to bring accountability among the legal fraternity. Eight papers were presented in the session. There was emphasis in one of the papers on Relaxing BCI Rule 36 in the era of Globalization which prohibits advertising by legal professionals which handicaps then m in the era of globalization when Indian legal professional faces stiff competition from foreign legal firms. Advertisements are allowed in other countries but not allowed in India which handicaps them in reaching out to consumers. It was emphasized that Rule 36 must by amended in tune with the changing scenario. The other papers highlighted on professional negligence and duty of lawyer to be more accountable toward their clients. There was also discussion on Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the interest of Clients and Promoting Rule of Law) Bill The Valedictory Session on August 28, 2011 began with the Address by Prof. Suresh Misra, Chair Professor and Coordinator, Centre for Consumer Studies. He addressed the gathering and expressed his feelings about the outcome in the conducting the seminar. He thanked the management and college for organising the seminar in collaboration with Centre for Consumer Studies, IIPA. The paper presented by the faculty and students were excellent. The resource Prof. Suresh Misra, Chair Professor and Coordinator, CCS addressing the gathering 12

13 persons were also very good. The contents were of very high quality which will definitely impart a lot of information on the issues related to consumer protection among the participants. He said that the Government of India has set up the Centre at IIPA to take up various activities in the area of Consumer Protection and Consumer Welfare. The aim of the Centre is to generate awareness among consumers especially among the rural masses. CCS is an extended arm of DCA and the creating consumer education is our job. We are also conducting a number of programmes for various stakeholders which include programme for President and Members of District Forums, workshop for the coordinators of consumer clubs, members of NGOs, seminars, conferences etc. CPA was enacted in 1986 and this year is the silver jubilee year of its enactment. The irony is that even after 25 years of its enactment we are still thinking how to take consumer movement forward. The misleading ads, spurious goods and sale promotion schemes are nothing but means to exploit consumers. MRP is also a legalized way to befool and exploit consumer. He said today the aspirations and desires of consumers are very high. The whole theory is Dil Mange More. You go to mall without any idea of buying anything but come out with a number of bags. The sensitivity on consumer protection is not there. Today the needs and aspiration of present generation are quite different. They believe in spending more and more and not saving. There is a need to make this generation aware. As consumer we have to look after our welfare. We are all silent sufferers. We do not want to protest and want others to take up and fight for our cause. We need to be aware of both our rights and responsibilities as consumers and take initiatives. In this the teachers and students can play an important role. They can take the consumer movement forward and generate awareness among the masses who are not so much aware about their rights and duties as consumers. Hon ble Justice S. B. Mhase, President, Maharashtra State Consumer Disputes Redressal Commission, Mumbai delivered the Valedictory Address. He highlighted the various problems which are stumbling blocks for the District Forums to give redressal to consumers like pendency of cases, the lack of resources, small matters do not reach court and many times the consumer is misled. He said that there is need to generate awareness among public regarding their consumer rights. 13

14 Hon ble Justice S. B. Mhase, President, SCDRC delivering the Valedictory Address The awareness generation should begin at schools as the students are the future of the country. The Consumer Clubs are required to be established in school and colleges for consumer literacy. However, these have not been established in Maharashtra and the money is lying unused. Consumer movement is slightly dwindling down in the state except in big cities. In many areas very few cases are being filed and the figure are going down as compared to earlier years of establishment of District Forums. One of the reasons is that there is no awareness among the consumers especially in musafil area. The consumer drive is required to be taken in these areas. The problem is the people who suffer are not aware and are not coming forward. No doubt the CPA is a very good tool to give redressal to the grievances of the consumers. However, it needs to be amended to keep pace with time and to make it more effective and efficient. One serious amendment which is required in CPA is that tenure appointment needs to be abolished. If a person who is coming from bar and is appointed as a President for 5 years and he can only be reappointed for another term, but not beyond has to go back to bar and start afresh. In such a condition good people will not like to join the forums. Thus to maintain the credibility of the system and to provide justice to the consumers there is need to evolve a system which is continuous. Further there is need to maintain discipline among the Presidents and Members of District Forums and for that cadreization is also necessary. Maharashtra is fifth in the pendency, cases are pending in 4 benches in the State Commission. To deal with this pendency there is need for more benches and infrastructure. The consumer approaches forum with an expectation that he will get quick justice and nothing is required to be paid by him as is informed by the Jago Grahak Jago campaign. But when he is told to deposit for court fee, pay to send notice etc., 14

15 he feel cheated and befooled. If the Act is seriously implemented and there is awareness then most of the problem will be solved. Central and State governments are also complainant, but till recently no complaint was filed by government. Only recently government of Maharashtra has filed a complaint regarding the agricultural claims of the agriculturist. The government should take action and make complaint in areas like hoarding etc. where the consumer might not have enough information and would not come forward. Representative litigation by NGOs has also been contemplated by CPA but not many have approached. It could have been very effective in case of unfair and restrictive trade practices. Consumers and NGOs themselves are not aware of many issues which amount to deficiency in service especially by public service providers like where service is withheld by railways due to strike and people suffer. There is need that judges who are manning the District Forums should forget CPC and Evidence Act while disposing consumer complaints. They should act according to the Principles of Natural Justice and summary procedure to provide quick justice to the consumers. It requires a radical change in the thinking of both judges and the lawyers. The lawyers try to introduce lengthy system of CPC in the quasi-judicial system of CPA to gain time. Consumer courts are supposed to decide the matter in summary manner as early as possible. Now the adjournments, cross-examination are being introduced in consumer court which was not contemplated under CPA. There is need for change in mindset. The CPA is a benevolent legislation for protection of lay consumers against mighty and unscrupulous traders. If the matters linger on consumers will get a feeling that there is no difference between the consumer courts and civil courts and will stop coming before District Forums. This is what is happening due to the long delays which are taking place. Summary procedure has been provided and all the powers of District Court and High Court have been concentrated in SCDRCs and NCDRC for the quick disposal of the cases with an idea to give quick justice to consumers. Dr. Vijay Pandharipande, Vice Chancellor, Dr. Babasaheb Ambedkar Marathwada University, Aurangabad Chaired the Session. In his Presidential Speech, he opined that a seminar is meant to be a brainstorming session that will enlighten the delegates and extract solutions from them in immediate problems that are in discussion. The requirement is for an action plan and documentation of the 15

16 Dr. Vijay Pandharipande, VC, Dr. BAM U delivering Presidential Address proceedings which can be instrumental in bringing changes at policy level. Then only it can be said to be fruitful. Consumer protection is an Issue of contemporary relevance for the common man. In every field the consumer is being cheated. The medicines which are being sold to consumers cost the manufacture very less. The consumers are being forced to buy such medicines. The companies are indirectly cheating the consumers. Ads and packaging are the other aspect on which consumers are cheated. What is use of having celebrities in ads which results in increase in prices a lot. The cheap items are sold at high price in shopping malls. There is need to deliberate on such issues seriously and consumers need to be made aware about it. Dr. B. H. Choudhary, Dean, Faculty of Law, Dr. BAMU, Aurangabad was the Guest of Honour. He opined that all the subjects at the present seminar were very relevant and merited some serious thought as it required urgent and immediate solutions. Dr. B. H. Choudhary, Dean Faculty of Law, Dr. BAMU addressing the participants (Sapna Chadah) (Suresh Misra) Seminar Coordinators 16