Goods and Defect under Consumer Protection Act?
What can be termed as a service – Section 2(1)(o) of the Act provides that “service” means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or loading or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
The definition provides a list of eleven sectors to which service may pertain in order to come under the purview of the Act. The list of these sectors is not an exhaustive one. Service may be of any description and pertain to any sector if it satisfy the following criteria:
1. service is made available to the potential users, i.e., service not only to the actual users but also to those who are capable of using it.
2. it should not be free of charge, e.g., the medical service rendered free of charge in Government hospital is not a service under the Act;
3. it should not be under a contract of personal service.
When we talk about ‘service’ under the Consumer Protection Act, we take it as a regular commercial transaction. Thus the services rendered under the contract of personal service are specifically excluded from the definition.
The expression ‘contract of personal service’ is not defined under the Act. In common parlance, it means – a contract to render service in a private capacity to an individual. For example, where a servant enters into an agreement with a master for employment, or where a landlord agrees to supply water to his tenant, these are the contracts of personal service. The idea is that under a personal service relationship, a person can discontinue the service at any time according to his will, he need not approach Consumer Forum to complaint about deficiency in service.
There is a difference between ‘contract of personal service’ and ‘contract for personal service’. In case of ‘contract of personal service’, the service seeker can order or require what is to be done and how it should be done. Like a master can tell his servant to bring goods from a particular place. But in a ‘contract for
personal service’, the service seeker can tell only what is to be done. How the work will be done is at the wish of the performer. Like when a person gives a suit to the tailor for stitching, he does not tell him which method he should use to stitch it.
Note : That it is ‘contract of personal service’ is excluded from the definition of service, ‘contract for personal service’ is recognised as service under the Act.
It does not make a difference whether the service provider is a Government body or a Private body. Thus even if a statutory corporation provides a deficient service, it can be made liable under the Act.
Example : A applied for electricity connection for his flour mill to Rajasthan State Electricity Board. The Board delayed in releasing the connection. It was held deficient in performing service.
Some other sectors/professionals/services which are not specified in the definition of service but which have been considered by the Consumer Forums as service sectors from time to time are listed below:
Advocates, Airlines, Chartered Accountants, Courier, Chit Fund, Education, Gas Cylinder/LPG, Medical services, Postal services, Railways, Investment related services, and Telephone services.
Thus, the test is – whether the person against whom the complaint is made performs a service for consideration which is sought by a potential user.