Defect-free goods responsibility of seller

Pushpa Girimaji

• Six months back, I purchased a silk saree costing Rs7,800. However, due to Covid-19, I never stepped out and never wore the saree. Last fortnight, when I opened the packed saree, I was shocked to find a large tear at the border — it looks like a weaving defect. Fortunately, I still had the receipt but the shopkeeper is refusing to change the same, saying I should have brought it within 15 days of purchase. He also showed me the terms and conditions at the back of the receipt, which say, ‘No refund, only exchange within 15 days of purchase’. According to him, I should have checked the saree before purchase and he is not responsible for its quality. What are my rights here?

First of all, we have moved away from the old concept of ‘Caveat Emptor’ or ‘let the buyer beware’ to ‘Caveat Venditor’ or ‘let the seller beware’— meaning the seller is responsible for the goods he sells. So you are not expected to check the saree before purchase. On the other hand, it is the responsibility of the shopkeeper to ensure that he sells defect-free goods. And if there is a defect, he is liable. Secondly, those one-sided terms and conditions printed on the receipt cannot take away your right to a defect-free product or your right to a refund or a replacement. Or your right to redress, provided under the Consumer Protection Act.

The new Consumer Protection Act has added certain provisions to deal with such cases. Refusing to take back defective goods and refund the cost of the product constitutes an unfair trade practice under the new law. The Consumer Protection Act of 2019 provides consumers the right to redress not only against defective goods and unfair trade practices, but also unfair contracts such as these. Thus, ‘imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage’ is an unfair contract.

The Supreme Court as well as the apex consumer court — National Consumer Disputes Redressal Commission — have struck down unjust and inequitable contract terms drawn up by service providers as well as manufacturers and retailers as unenforceable. The new Consumer Protection Act strengthens the rights of consumers further against such one-sided terms and conditions. So write to the retailer, informing him of your decision to go to the consumer court — if he is smart, he will give you a replacement or a refund because if you lodge a complaint in the consumer court, he will end up spending much more on the lawyer and compensation costs to you.

• Can you quote any such case?

In Pioneer Urban Land and Infrastructure Ltd Vs Govindan Raghavan (CA No 12238 of 2018), for example, the Supreme Court came down heavily on one-sided contracts drawn up by builders and said unfair and unreasonable terms constituted an unfair trade practice and were unenforceable.

The Supreme Court also quoted Central Inland Water Transport Corporation Ltd Vs Brojo Nath Ganguly, where the apex court, in its judgment of April 6, 1986, had laid down rules for striking down unfair terms, and said the courts will not enforce unreasonable terms drawn up between parties that are not equal in bargaining power.

Similarly, consumer courts have, in many such disputes, held that patently unreasonable terms printed on cash receipts were not enforceable. Perhaps, the oldest case decided on this issue by the apex consumer court is Tip Top Drycleaners Vs Sunil Kumar (RP NO 1328 of 2003), where it held that the patently unfair terms printed on the back of the drycleaner’s receipt were not binding on the consumer.

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