Arbitration Clause and Indian Consumer Protection Act 1986

Many companies include the ‘Arbitration’ clause in their warranty terms. This will require appointment of arbitrators for the respective parties in case of any disputes and the arbitration will be held at the place of the company’s choice and convenience. From consumers point of view this is ridiculous as it is always not possible for a consumer to appoint arbitrator and it will also be not possible for consumer to travel to the place of arbitration for hearings. Moreover, this is more suited for commercial contracts. This also goes against the very purpose of enacting Consumer Protection Act. Fortunately, remedy lies in the Consumer Protection Act, 1986.

Section 3 of Consumer Protection Act 1986 states as follows:

“Act not in derogation of any other law.—The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

This can be interpreted that CPA is not a replacement of any other law that is agreed between the parties to settle disputes.  However, CPA is in addition to whatever law or other provisions available at the material time.

Going by the above, one is not prevented from availing the provisions of CPA provided the Complainant is a Consumer and the nature of complaint falls within the meaning of consumer dispute as defined in the Act.  The opposite party may very well argue that the disputes are subject to Arbitration Act.  However, Consumer Courts take a lenient view in favour of the consumers on the following grounds:

Consumer Protection Act is enacted by the Parliament of Law, Govt. of India and it has the status of a Court.  It is enacted to enable ordinary consumers to secure less expensive and speedy redressal of their grievances.

In a recent order on a dispute between Mr.Lakhbir Singh and BSNL & Ors. in the District Consumer Forum, Ferozepur (CC No.180/2009), it is stated that:

“The Consumer Forum established under the Consumer Protection Act, 1986 does not exercise jurisdiction upon each and every matter, rather the jurisdiction of the Consumer Forum can be invoked only on the matters/disputes where the consumer element is involved. So when a dispute where the rights of the consumers are to be adjudicated there only the consumer courts, specially enacted for the said purpose, have the jurisdiction and all other Forums fall subordinate to it. It is now clear that the Consumer Protection law is not a general law, but a special law enacted for the better protection of the interests of the consumers. Where there is a deficiency in service and unfair trade practice, the provisions of the Consumer Protection Act, 1986 can be invoked irrespective of any other statute dealing with the same matter. The remedy under the Consumer Protection Act is an additional and special remedy.

The Hon’ble National Commission in “Union of India and Others Versus Jagdamba Rice Mills, 1993 (1) CLT 705, while discussing Section 7-B of the Indian Telegraph Act and referring to the authority styled as Santokh Singh Versus Divisional Engineer Telephones, Shilong, AIR 1990 Ghuwahati 47, has observed that the Government of India has itself taken a policy decision to the effect that all the requests and reference to Arbitration under the Indian Telegraph Act shall be rejected and Arbitrator shall be appointed only in such cases where subscriber approaches a court with a request for arbitration and court orders for the same. So when the Government of India to be more specific Telecom Authority itself is not willing to refer the dispute concerning the telegraph apparatus etc. to the Arbitrator except upon the orders of the court, then it does not behoove to the opposite parties to raise an objection under Section 7-B of the Telegraph Act.

Now, it is also a settled law that where two interpretations of statute/law are possible, then the one favouring the consumer is to be taken. Moreover, in case of petty consumer disputes, to direct a poor consumer to approach the Central Government for appointment of an Arbitrator for the adjudication of his small dispute, would be just the denial of justice to him especially when the legislature has enacted a consumer friendly legislation for better protection of the consumer rights and the remedy is available at the door step of the consumer as the District Consumer Forums have been established at every District head quarter of a State.”

Settling disputes by way of Arbitration may prove to be expensive and a long drawn process.  This procedure is not suggested for settling consumer disputes, for which the special Act CPA is enacted.  So in our general view, disputes can be referred to the Consumer Courts even if the warranty terms incorporate Arbitration clause.

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