DEFICIENCY OF SERVICE UNDER THE CONSUMER PROTECTION ACT & ITS APPLICABILITY TO EDUCATIONAL INSTITUTIONS AND COACHING CENTRES
We all have certain expectations regarding the goods and services we avail. Sometimes the products or services taken by us are totally out of our expectations. But what if we want to get redressal for the lack of worth that we have experienced? How do we know for us as a consumer whether any right arises or not? We have a separate mechanism named "The Consumer Protection Act, 2019," which replaced the old "Consumer Protection Act, 1986".
The Deficiency of Service is entertained only if the grievance is about the service. In this article, the author explains the different types of services, deficiencies, and the various conditions required to be fulfilled to claim damages under the Act. Lastly, educational institutions and coaching centres are part of CPA will also be discussed.
THE CONSUMER PROTECTION ACT, 2019
Deficiency of service refers to the lack of quality, worth, or authenticity that the buyer did not expect from the seller during the transaction. In other words, when we find a discrepancy in the quality, functions, or features that were advertised and the actual product, it is nothing but "a deficiency of services Consumer protection is one of the torts that is codified as "Consumer Protection Act, 2019, also referred to as CPA, 2019, and earlier as "Consumer Protection Act, 1986". When any consumer or person availing the service is dissatisfied or finds his civil right being injured, he can claim damages under deficiency of services under the ambit of the Consumer Protection Act, 2019.
This Act comprehensively deals with situations that may arise in a real-life scenario and is the main instrument for consumers to get their grievances redressed. The introduction of the Consumer Protection Act, 2019 says it is "An Act to provide for the protection of the interests of consumers and the said purpose, to establish authorities for timely and effective administration and settlement of consumers disputes and matters connected therewith or incidental thereto."
The first question that strikes our mind while reading this is "who is a consumer". The consumer in simple terms is a person or entity who is availing of a service or is buying a product for use. But it is not as simple as we might think. Clarification on who falls under the category of the consumer is given in Section 2(7) (i) & (ii) of CPA, 2019. After reading this section, we obtain the following information-
Firstly, a consumer is a person or entity to "buys" or "hires or avails" a service or good. It excludes gifts or things obtained as a favour. Secondly, under the definition of consumer in the Act, goods for resale or any commercial purpose are not included. Lastly, the new Act now also includes electronic services and teleshopping. The services include banking, railways, transportation, entertainment, legal aid, education, etc.
DEFICIENCY OF SERVICE
The next question after knowing a consumer is "what is meant by deficiency." As per the definition provided in Section 2(11) of The Consumer Protection Act, "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 about 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.
Deficiency includes the worth or potential which was claimed by the seller or service provider but was not present. But there are a few important prerequisites required to be fulfilled to claim deficiency of service. The first is that the service should not be free of cost. Second, there should be concealment/commission/omission of the seller, and this must lead to any injury or loss to the consumers. Third, the "personal service contracts", which mean contracts to deliver private services, for example, master-servant relations, contractor services, and landlord-tenant relations. The reason is under a personal service relationship, the service can be discontinued at any time as per the will, and he does not need to approach Consumer Forum. The burden of proof of deficiency is on the consumer who needs to prove that the service was deficient.
EDUCATIONAL INSTITUTIONS AND LACK OF ACCOUNTABILITY
Education as a business is a booming sector, and it has attracted a lot of attention from people all over the world. Coaching and Tuition classes have become an integral part of every student's life. The coaching centres claim to provide the best faculty, facilities, and results to lure students. They pay a huge amount to get the best possible education, but when they find a deficiency of service from educational institutions, they are confused. Earlier education was not a business and was provided most of the time free without any consideration. But now, it has become a business. With this, the exploitation of students and their guardians has also increased. The definition is given in CPA, 2019, which describes service as "service of any description made available to potential users". The use of the words 'any' for the services included within the definition signifies every service capable of contemplation, including services not specifically enumerated in the inclusionary part of the definition. And after this, a non-exhaustive list of activities is given. In connection with education, a person pays some consideration to a teacher or institution, and expects some benefit, for example, good grades and success in exams. It clarifies the doubt that education is a "service" under the CPA, 2019. But we see a trend in Indian courts of showing reluctance to recognize "educational institutes" as service providers under CPA. However, this does not mean that all educational institutes are exempted from this.
A few cases relating to this are: -
Bhupesh Khurana v. Vishwa Bhudha Parishad- In this case, fraud or misrepresentation of facts was done by the university as it had shown itself as an affiliate of the Dental Council of India and Magadh University Bihar. Whereas, in reality, it was seeking affiliation. They committed fraud by misrepresenting facts, and the Court held that education is a service and the students are consumers under the Act.
P T Koshy v. Allen Charitable Trust- In this case, the Supreme Court held that educational institutions should be assessed on their