20^th November, 2021; 11am-12noon

Speaker: Prof Bejon Misra Founder Signatory of the Consumer Coordination Council (CCC), Partnership for Safe medicines India, Patient Safety & Access initiative of India Foundation, Ms Ira Gupta Advocate, Legal Advisor, Heart Care Foundation of India

Key points of HCFI Expert Round Table

• The Consumer Protection Act, 2019 was passed on 30th July, 2019 by the Lok Sabha; it came into force on 20th July, 2020. The main aim is to protect the rights of the consumers by establishing authorities for timely and effective administration and settlement of consumer disputes.
• Hence, the new version of the CPA is more towards effective settlement of consumer disputes. It is more lenient than the earlier 1986 Act because this act has come out very specifically for the implementation of mediation to try to settle the disputes as quickly as possible.
• The Act has defined a complainant as (i) a consumer; or (ii) any voluntary consumer association registered under any law for the time being in force; or (iii) the Central Government or any State Government; or (iv) the Central Authority; or (v) one or more consumers, where there are numerous consumers having the same interest; or (vi) in case of death of a consumer, his legal heir or legal representative; or (vii) in case of a consumer being a minor, his parent or legal guardian.”
• There has to be a reason for filing a complaint. Even in medical negligence, the consumer (complainant) has to prove deficiency of service. 
• A complaint is any allegation in writing, made by a complainant for obtaining any relief for an unfair contract or unfair trade practice or a restrictive trade practice, defective goods, deficiency of services, overcharging of prices, hazardous goods/services or claim for product liability. 
• A consumer is a person who buys any goods or avails a service for a consideration. It does not include a person who obtains a good for resale or a good/service for commercial purpose. It covers transactions through all modes including offline or online transactions through electronic means, teleshopping or direct selling. 
• The rights of consumer include the right to be protected against the marketing of hazardous goods, products or services, the right to be informed about the goods, products or services, right to be assured, wherever possible, access to a variety of goods, products or services at competitive prices; right to be heard, right to seek redressal and right to consumer awareness.
• “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.”
• Medical negligence falls under deficiency of service. Always take informed consent from the patient to see if they have understood the information given to them about the management.
• For the first time, this Act has established a Central Consumer Protection Authority to promote, protect and enforce the rights of the patients / consumers. There is also a State Consumer Protection Authority. It will regulate matters related to violation of consumer rights, unfair trade practices and misleading advertisements. The Authority will enquire about the violations of consumer rights, pass orders to recall goods or withdraw hazardous service, issue direction to discontinue or modify a false or misleading advertisement and impose penalties. 
• The CCPA may impose a penalty of up to Rs 10 lakh and imprisonment for up to 2 years for a false or misleading advertisement. The fine may extend to Rs 50 lakh and imprisonment up to 5 years for subsequent offence.
• The 2019 Act has established Consumer Disputes Redressal Commissions at the national, state and district levels. The final appeal will lie before the Supreme Court. The CDRC will entertain complaints related to unfair / restrictive trade practices, overcharging or deceptive charging, sale of hazardous goods and services and sale of defective goods or services.
• The National CDRC has jurisdiction of over 10 crores. The District Commission will entertain complaints where the value of goods or services does not exceed one crore rupees. Now patients can file cases up to one crore even in district CDRC. The State Commission will entertain complaints when the value is more than Rs one crore but not more than Rs 10 crores.
• Product liability has been introduced for the first time in this Act. The manufacturer or product service provider will be held responsible to compensate for injury or damage caused by defective product or sold or deficiency in services. 
• The basis for product liability action includes manufacturing defect, design defect, deviation from manufacturing specifications, failing to contain adequate instructions for correct use, faulty/imperfect or deficient service provided. For the physician, this means failure to provide instructions for medicine used as prescribed by the manufacturer may be liable for negligence.
• For the first time Consumer Protection (E-commerce) Rules 2020 have been notified. The E-commerce industry, which were outside the purview of the 1986 Act, are now covered under the new CPA. The grievance redressal for E-commerce is a bit faster. These platforms will have to acknowledge the receipt of any consumer complaint within 48 hours and redress the complain within one month from the date of the receipt. Sellers cannot refuse to take back goods or withdraw services or refuse refunds, if such goods are defective, deficient, delivered late or do not meet the description on the platform. They also cannot manipulate prices of the goods or services. These provisions are mandatory and not advisories.
• There is provision of punishment for manufacture or sale of adulterated or spurious goods with suspension of license for up to 2 years and permanent cancelation of license for second or subsequent conviction. For healthcare, this applies to manufacturer of equipments or medicines.
• Apart from the CDRC, the Act also provides for alternate redressal mechanism of mediation. It has been made mandatory that mediation cells are attached to Consumer Commission and mediations are to be held in consumer mediation cells. There will be no appeal against settlement through mediation.
• The Consumer Protection Act 2019 has provisions for mediation, video conferencing of cases, e-commerce, product liability, which were not there in CPA 1986. Under the new Act, a complaint can be filed from anywhere or from where the consumer resides. Earlier, a complaint could be filed in the consumer court under whom the jurisdiction of the seller falls under. Earlier, the jurisdiction at district level was up to 20 lakhs, but now in the new Act, it has been extended up to Rs one crore. 
• Mediation has been incorporated in the new Act so that the service provider can settle disputes at their level and not let it go to the judiciary. Sit with the complainant, adjudicate and come to a conclusion.
• Bodies of eminent doctors, who are experts in their specialties, should be established in every town, whose unbiased opinion, based on truth, evidence and science would be voluntarily agreed to and not be regulatory in nature. Court should take cognizance of them and ask the consumer to first approach the expert groups before going to the court of law.
• Discussion on CPA should be done on a larger platform involving many practitioners.

Participants

Dr KK Kalra

Prof Bejon Misa

Dr Ashok Gupta

Dr DP Lokwani

Dr DR Rai

Dr B Kapoor

Ms Ira Gupta

Dr S Sharma

Moderator 

Mr Saurabh Aggarwal