CONSUMER PROTECTION: NATIONAL AND INTERNATIONAL EXPERIENCES
If we gaze at the primeval history of India we can see the human values and ethical practices with utmost significance from 3200 B.C. Even almost all the rulers gave prime importance to welfare of the people and they used to regulate the social and economic lives by establishing trade restrictions to protect the buyers’ interests. As the days are passing and monopoly power increasing in the hands of sellers’, exploitation of consumers became a common practice not only in India but also across the globe. This gave seed to the concept of consumerism primarily in Western countries where as consumer protection act was made in India in 1986. Earlier consumers were not aware of their rights; there were not many regulations hence the chances to be exploited were more. But today with so many regulations, with so much awareness and with increased education consumers are still being exploited in so many ways. This paper examines the concept of consumerism, consumer protection practices with real time experiences about how consumers are being exploited nationally and internationally.
Consumer is the one who buys and uses a product or a service. Earlier the manufacturers used to work under the principle of ‘CAVEAT EMPTOR’, which means buyer beware as they knew the customer will examine the product with all his skills and knowledge before buying it. But the growth of trade and its globalization has made it now impossible for the consumer to assure the quality of the product beforehand. On top of that the complexities of the product also have been enhanced with the advancement of science thus making the examining process a much tougher job for the consumer. Thus the producers have an upper hand over the consumers any day, plus they are becoming stronger and stronger day by day with the consumers being duped, misled and exploited every now and then. In the era of emerging e-commerce and improvised information technology the consumers are further deprived of their rights to get a qualitative product in reasonable rates. This has led to the increasing number of consumer exploitation cases around the world. Consumer exploitation is a situation where the consumers are cheated by the business community explicitly by providing poor quality products or by charging high prices. Some of the common ways of exploitation are:
Sometimes the goods sold are not measured or weighed properly.
The goods sold sometimes are of poor quality for e.g. selling of medicines beyond their expiry dates and supply of defective home appliances.
Charging a price higher than the prescribed retail price.
In the name of reputed firms, fake or duplicate items are being sold to the consumers.
Harmful substances are mixed in edible items which harms their health.
Traders create artificial scarcity by hoarding to sell the goods at a higher price, which is called ‘black marketing’.
Sellers mislead consumers by giving wrong information related to price, quality, expiry date, durability, effect on health and environment and the maintenance costs of a product.
Sellers do not provide satisfactory after-sale service, which is necessary for electrical & electronic goods, car and other vehicles.
Supply of blood from a blood bank infected with AIDS or other diseases.
In order to shield the consumers being exploited many protective measures have been adopted across the globe whereas in India, the Consumer Protection Act was introduced in the year 1986 which provides the rights to the consumer to seek redressal in a dispute at a state or national level. The agencies could now with the help of this law resolve the complaints in a more simple, inexpensive and prompt mode. A whole department has been established to look after consumer affairs at the state and central government. The overall situation of rising exploitation gave birth to consumer protection practices thus consumerism came into effect. Consumerism is a recent and universal social movement. It refers to the wide range of government business and independent organizations’ activities designed to protect the consumer rights. Consumerism is a process through which the consumers seek redress, restitution and remedy for their dissatisfaction and frustration with the help of their all organized or unorganized efforts and activities. The main concept of consumerism is self-protection by consumers. They must be aware of their rights, raise their voice against any exploitation and try to get their grievances sort out. Consumer Organizations voluntarily engaged in managing consumers and encouraging and protect their interests by exerting, legal, moral and economic pressure on producers is the other most important element of consumerism. By any means consumerism should not be considered as consumers’ war against business as their satisfaction will not only benefit business but government and society as well.
NEED FOR THE STUDY
Even today, a large proportion of population is illiterate. They need to be educated to make right choices. Some dishonest traders and manufacturers may exploit consumer in various ways. Consumer awareness amongst the masses are thus necessary to prevent such exploitation. Consumers must know the health aspects of commodities and services purchased by them. Adulterated goods are the main source of human sickness and suffering. To make them good citizens, consumers ought to know their privileges and responsibilities. The study enables the consumers to greater preferences also with reasonable and cheap prices.
OBJECTIVES OF THE STUDY
The protection of consumer is an interdisciplinary and intricate area; therefore activities in this area include various ministries, various disciplines and institutions and numerous operators. As a result, it is of indispensable significance that all consumer protection bodies, including those in governmental organizations as well as non-governmental organizations, be in line with the national programme and directed towards reaching synergies within the common objectives:
Reaching a soaring level of consumer protection that is a universal denominator of all objectives followed by consumer protection policy;
Equally important objective is health and wellbeing of consumers.
Integration of consumer safety in all policies, having impact on the circumstances and concern of consumers in the market;
Gradual institutional building and appropriate organisation of consumer protection bodies for efficient execution of tasks in the field of consumer protection;
Proper implementation of the consumer legislation;
Proper market control of the product safety and safety of economic interest of consumer;
Efficient and accessible public services in the area of consumer protection;
Spiraling the cooperation with non-governmental organizations;
Proper settlement of consumer disagreements by creating public schemes of alternative dispute settlement.
SCOPE OF THE STUDY
This discussion begins with a brief study on consumer protection and the various ways of consumer exploitation and different consumer cases in various places nationally and internationally. It will be based upon an analysis of two students supplemented by the findings of several comprehensive studies of the status of consumer protection. Specifically this study contributes to the different consumer exploitation experiences nationally and across the globe.
CONSUMERISM IN THE WORLD
In 1962, former US President John F Kennedy declared four basic consumer rights – the right to safety; the right to be informed; the right to choose and the right to be heard. His declaration issued a license for the world’s consumer groups which have expanded since then to reflect the need of consumers in the market. The guidelines were formulated to:
Assist countries to achieve and maintain adequate protection for consumers
Encourage ethical conduct in the market
Encourage the development of market conditions which provide consumers with greater choice at lower prices
After extensive international consultation, UN General Assembly adopted few UN Guidelines for Consumer Protection in April 1985, and updated in 1999. The eight rights listed below are the work of consumer groups and many government consumer affairs agencies around the world.
Right to satisfaction of Basic Needs
Right to Safety
Right to be Informed
Right to Choose
Right to be Heard
Right to Redress
Right to Consumer Education
Right to Healthy & Sustainable Environment
It acted as a tool for the nations to support consumer protection. At the international level this has become the foundation for consumer movement. Today 240 organizations from over 100 countries has come up and united under a single body named Consumers International.
CONSUMERISM IN INDIA
In India the movement was initiated as a ‘social force’ to safeguard and encourage the interests of the consumers. But the Consumer Protection Act in 1986 gave it a legal authority with the declaration of six consumer rights. Separate government departments of consumer affairs were set up and three tier system of consumer courts at national, state and district levels. The movement has already progressed a lot in spreading consumer awareness but is still facing some of the problems such as:
The consumer redressal system is becoming difficult, expensive and time-consuming.
Evidence is not easy to gather as cash memos are not issued for most of the purchases.
The existing laws are not very clear about the issue of compensation to consumers injured by defective products.
As codified under the Indian Laws the Consumers have the following
Right to Safety—to protect against hazardous goods
Right to be Informed—about price, quality, purity
Right to choose—access to a variety of goods and services at competitive prices.
Right to be Heard—consumers interest and welfare must be taken care of
Right to seek Redress—protection against unfair trade practices and settling genuine grievances.
6. Right to Consumer Education.—Knowledge about goods and issues related to consumers.
CONSUMER PROTECTION ACT 1986 (COPRA)
As stated earlier, Consumer Protection Act was enacted so as to have a single comprehensive law for the protection of the interest of consumers and for the creation of special courts to solve the consumer disputes speedily and inexpensive manner. Salient features of the Act are as follows:
Declaration of Six Consumer Rights.
Setting up of a separate Department of Consumer Affairs in Central and State Governments.
Setting up of a three tier consumer courts for deciding the consumer disputes, namely
- National Commission at national level
- State Commission at State level
- District Forums at district level
Organizations providing certification of standardization in India
Bureau of Indian Standard (BIS): Earlier known as Indian Standards Institution (ISI), issues quality mark for industrial goods.
Directorate of Marketing and Intelligence (DMI) issues Agmark for the agricultural goods like honey, spices etc.
Hallmark, Woolmark are other important standards adopted in India
At international level International Standardization Organization (ISO) provide a common reference standard for various goods and services.
Codex Alimentarius Commission develops international food standards for the products like milk, milk products, meat, fish, cereals etc.
Inspite of so many rules and regulations prevailing consumerism is still in its infancy in the country all because of the sellers market and government monopoly in most services. Consumers are not properly informed about their rights due to lack of apathy and lack of education among the masses. What consumerism lacks here is education and information resources, testing facilities, competent leadership, price control mechanism, and adequate quasi-judicial machinery.
NATIONAL EXPERIENCES OF CONSUMER EXPLOITATION
Medical field is an area where consumers are cheated most of the time as the chances are high because of comparatively negligible knowledge of the subject. Patients don’t know and cannot tell what the problem is and what will be the correct and cheapest solution and depend entirely on the doctors for their treatment. Some doctors take an advantage of this and exploit the patients for their benefit. Below are some of the bad experiences faced by the consumers.
Medical negligence: A naked truth
The majority of the public did not accept the claim of medical experts who argued that the doctor-patient relationship is similar to master – servant relationship, which is a contract of personal service. The doctor is an self-governing contractor and the doctor is hired to perform a specific task like a servant. However, the master is allowed to direct only what is to be done. The ‘how’ is left up to the particular prudence of the self-governing contractor who is the doctor. So, the doctor-patient relationship is an agreement for personal service.
THE ‘BOLAM’ TEST ELECTRO CONVULSIVE THERAPY
The patient Mr,Bolam was ailing from mental illness and doctors advised him for electro convulsive therapy. However, there were risks of fractures in the treatment, he was not informed. One opinion was using was relaxant drugs. Using relaxants, the patient sustained fracture of pelvis along with the dislocation of both hip joints. As the doctor acted in accordance with practice acknowledged as perfect by a group of men skilled in medicine, he was not detained.
The “BOLAM" principle says that a doctor cannot be accused if he acts according to the practice acknowledged as proper by a group of responsible medical experts even if other physicians adopt some other dissimilar practice, has been acknowledged by House of Lords as appropriate not only to diagnose and healing but also to suggest and warn. A doctor is not responsible for preferring an alternative out of two for favoring one opinion rather than another. He is only accountable when he does not fulfill being a rational component practitioner in this art, so much so that his demeanor may deserve reprimand.
ALLEGED REMOVAL OF TESTES
This case is a different case which is between Tarun Kumar Pramanik v. Dr. Kunal Chakraborty & Ors, the appellant has accused the doctor for removing the left testis negligently and without consent during the operation for left inguinal hernia. He suffered and has become handicapped because of this.
Considering the evidence provided, the State Commission observed the case and heard the opinion of expert witness. The doctors who operated the complainant justified that the removal of testis was performed to keep the patient away from gangrenous infection. The complainant was held and the doctors also argued that the operation was done with reasonable care and with expert help and had not caused any handicap.
The complaint had no proper evidence and the Complainant was held to be vexatious and he was held responsible to pay cost of first opposite party.
This is the unusual case which deals with Jayantilal Govindlal Parmar v. Managing Trustee & Ors, the plaintiff claimed he was operated for gall stones, but consequently he developed stricture near the bulbous urethra and as a result, he could not enjoy his sex life and also he could not urinate properly. Finally he had to attend a surgery at a Urological Hospital to become alright and he had to spend really a heavy amount due to the careless performance of his earlier operation. The State Commission was alerted about the case and the complaint was dismissed.
The case was dismissed as the patient had no proper evidence on his side to support his complaint even though he was exploited.
Removal of testes
This is yet another case which revolves around Harjivanbhai Khoda Bhai Gohil v. Dr. Yogendra D Shah, the appellant claimed he was operated for hernia and fistula. During the surgery, the opposite party detached his left testis with the blood vessel even without the complainant’s knowledge.
The State Commission observed the case and held the complainant that the case papers reflected that the abrasion had healed well after the surgery. And also, the consent evidently mentioned the authorization for removal of testis. Cost of Rs.5000/- was awarded to Dr. Shah ,the opposite party, for ill-conceived complaint.
INTERNATIONAL EXPERIENCES OF CONSUMER EXPLOITATION
MEDICAL NEGLIGENCE IN AUSTRALIA
HOW MANY ARE AFFECTED?
The maximum rate of medical error in the world happens in Australia according to World Trade Organization
Around 18,000 people die in hospitals annually through preventable medical negligence in Australia
Around 50,000 people suffer from permanent injury per year in consequence of medical negligence in Australia.
Around 80,000 patients per year are hospitalised due to medical errors committed by the hospitals in Australia
REASONABLE CARE AND NOTHING ELSE?
All medical blunders are not NEGLIGENT. The patient does not have right to claim for compensation just because of the bad outcome during the treatment. A medical blunder is considered negligent only if the doctor has failed to take care of the victim. The law does not need a doctor to act perfectly, but the law requires a doctor take responsible care in treating and taking good care of a patient. It is not too difficult to accomplish.
DOCTORS STICKING TOGETHER
In order to instigate proceedings against a healthcare practitioner, most jurisdictions require that the claimant have no less than one helpful medical-legal opinion, written by a doctor who supports the claimant's case on liability damage and causation.
Lawyers cannot start court procedures without filing an expert report with the claimant's Statement of Claim. This means that you cannot bring a negligence case in court if you can't find a doctor ready to speak-out on your behalf.
The outcome of having a close-knit occupation in Australia means that many claimants have to pay for costly reports from overseas medical specialists preferably from the UK. Many people cannot afford paying 2,000 British pounds for an opinion from the UK. If you can't afford an opinion your solicitor will not pay for it and you will never ever know whether your treatment was negligent.
THE VICTIMS DON’T WANT MONEY, BUT JUSTICE
In the year 1999, a study was submitted in the Medical Journal of Australia and it said that almost many of the patients who complained were dissatisfied with either the course of action or the result. Typically they wanted stronger measures to be taken. Majority of the victims wanted acknowledgement of harm done and they wanted the doctors to be punished, only a few victims wanted compensation.
Not every patient sues when something goes wrong, following the medical negligence in Australia. Most of the victims want the doctor to apologise or they want the mistake to be acknowledged.
WHY DO PEOPLE GO TO COURT?!
Imagine never being able to do any job again due to permanent brain damage caused by a doctor's carelessness.
Imagine not being able to bathe yourself, nourish, dress and requiring 24 hours a day helper because of a everlasting healthcare injury.
The idea of compensation laws is to set the claimant back into the place they would have been, had the carelessness not taken place. Compensation is calculated on the basis of requirement.
Compensation is awarded for the following->
Pain and agony
Income you may have forfeited during recovering from the situation ascribed to the disregard
Future income you may lose also called as future economic loss as an outcome of the doctor’s carelessness
Expenses related with treatment, medications, nursing services, healing courses etc to help in the recovery and injuries refurbish process.
WHAT ABOUT THE PATIENT’S LAWYERS?
In Australia and other foreign countries, it is not too simple to get an advocate to deal with medical blunders and a common myth is prevailing around the world that advocates take on ANY case in spite of its virtues, in order to make $$$.
The profitable reality is that lawyers take cases only if they believe there is a good probability of winning it and only if they are praiseworthy. The lawyers take up cases on a No win No fee basis. This means if they lose the case, there is no need to pay them their fee. There is no fiscal enticement in running a frolicsome claim.
State governments have brought in legislation which places restrictions on the total of authorized costs that a solicitor can allege in medical negligence cases.
PATIENT’S RIGHTS ARE TAKEN AWAY
It is essential that the patients who come for treatment should be taken proper care of and the doctors who are treating them is fully responsible to whatever happens to the patient after the treatment and it is also significant that the occurrence of medicinal injuries is under control through a better medical quality. Quality treatment should be given to the patients. The medical errors in the medical field should reduce by providing quality treatment. The medical profession should be encouraged to ensure that problems are identified and solved in the initial stages.
The government should try increasing the healthcare funds to reduce the incidence of adverse happenings and therefore reduce the potential number of victims. Some of the various factors which contribute to the occurrence of adverse events are Underfunding of Public healthcare system and cost saving methods adopted by the private hospitals for greater profits.
The government has to take responsibilities for the rising number of medical negligence and the adverse medical events and has to take necessary actions on the physicians who are responsible.
The Civil Liability Act in NSW has listed the following:-
claims for “general damages for pain and agony" being restricted to not more than $350,000.00
patients cannot make any claim regarding commendable or penalizing damages
a scale dealing with the importance of claims for non fiscal loss damages for pain and agony to the result of no sting and suffering damages is provided for cases with undying mutilation less than 15%.
claims for revival of past and future economic loss eg:loss of salary, is restricted
claims for forthcoming damages items would be discounted by 5%
no interest will be given back for non economic loss
claims for the cost of forthcoming domestic care restricted and future medical expenses discounted by 5%
CASE AGAINST THE CELLULAR COMPANY
Tracy Williamson went to court and sued $300000 against the acacia Mortgage corporation for advertising low home mortgage rates through sending her a text message. Tracy argued that the message violated the rules of the TCPA which strongly restricted the private organizations from advertising through cellular phones without the consent of the phone holder.
ANTI CYBER SQUATTING CONSUMER PROTECTION ACT
John Zuccarini, a notorious cyber squatter lost an ACPA lawsuit in October of 2000, when the court awarded the claimant legal damages of $500,000 for each of five domain names that were obtained in bad faith and that were confusingly similar to the claimant's brand name. The court also ordered Mr. Zuccarini to pay lawyers' fees of more than $30,000.
So many acts have been made, rights have been given to the consumers, programmes are being conducted to uplift the condition of the consumers in the existing market dominated by sellers, and still the consumers are exploited in many ways by the manufacturers and producers. Consumers are still not aware about the existing organizations that can help them to come out from their shock and help them fight against the selfish and greedy sellers. Especially in a country like India where rural population exceeds urban with a high percentage, people are illiterate and have no idea what they are going through and how can they help themselves. On top of that medical field, an area where the even the educated group is helpless and have no knowledge about the subject hence, it is very easy for the manipulative and smart doctors to drain patients’ money by way of irrelevant and costly tests, not diagnosing the problem in just one meeting to make some more money through consultation charges for many more times and some hospitals in India even .
1. The consumers have to collect a bill and the warranty card for every important purchase.
2. Consumers have to check ISI mark or Agmark printed on the goods.
3. Consumers should unite together and form consumer welfare groups.
4. Consumers should come forward to make a complaint on genuine grievances.
5. Consumers should act according to their rights.
6. Consumers should check for proper labelling, full information, health warnings, handling information, operational instructions, expiration date, etc.
7. Consumers should not pay above the MRP rate at any circumstance.
Indian Economy, by Rudradatt.