ALL INDIA MOOT COURT COMPETITION,2024 AICCML-22

BEFORE
THE HON’BLE APEX COURT OF VENGADAM

WRIT PETITION BY WAY ARTICLE 32 OF THE CONSTITUTION

&
TRANSFER PETITION BY WAY OF ARTICLE 139A OF THE CONSTITUTION

IN THE MATTER OF:

Bio-Med Care Co. & Other .................................................................................. Appellant

Versus

Mrs. Lisa & Another ......................................................................................... Respondent

MEMORANDUM ON BEHALF OF THE RESPONDENT

1
1
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS… .............................................................................. 3

INDEX OF AUTHORITIES ................................................................................... 4-5

STATEMENT OF JURISDICTION ........................................................................ 7

STATEMENT OF FACTS .......................................................................................8-9

POINT OF ARGUMENT ......................................................................................... 10

SUMMARY OF ARGUMENTS ............................................................................... 11-12

ARGUMENTS ADVANCED .................................................................................... 13-33

1. Whether Mrs. Lisa can be considered as a Consumer as per the provisions of the
Consumer Protection Act, 2019, and hence eligible to claim remedy from Bio-Med ..... Care
Co.? ............................................................................................................................ 13-17

2. Whether there is any deficiency in service on the part of Pillai's Wellness Hospital so . as
to be liable to compensate Mrs. Lisa? ........................................................................ 18-23

3. Whether the provisions conferring the right to appeal against an order issued by the
Commission based on the settlement in Mediation is Constitutionally valid?............ 24-28

4. Whether the provisions that empower the Central Consumer Protection Authority to
impose penalties on endorsers is Constitutionally valid? .............................................29-33

PRAYER ...................................................................................................................... 34

2
 LIST OF ABBREVIATIONS

1. AIR - All India Report

2. Consti- Constitution
3. &. - And
4. Anr. - Another
5. Art. - Article
6. Ors. - Orthers
7. Sec. - Section
8. SC - Supreme Court
9. SCC - Supreme Court Cases
10. SCR - Supreme Court Report
11. i.e - That is
12. u/s - Under Section
13. v. - Versus
14. Etc. – Etcetera
15. SOGA – Sale of Goods and Services Act,1930
16. ADR – Alternative Dispute Redressal Mechanism
17. NCDRD – National Consumer Disputes Redressal Commission
18. SCDRD- State Consumer Disputes Redressal Commission
19. CPA – Consumer Protection Act, 2019

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 INDEX OF AUTHORITIES

Indian Cases:

1. Jayanta Dasgupta v. Binata Debnath and Anr., 2009 SCC OnLine NCDRC 55
2. Anant Raj Agencies v. TELCO
3. Donoghue v. Stevenson
4. Henningson v. Bloomfield Motors Inc
5. Jagrut Nagrik v. Baroda Automobiles Sales and Service 2010 SCC OnLine NCDRC 250
6. Tata Motors Jivan Tara Building v. Rajesh Tyagi, 2013 SCC OnLine NCDRC 1031, the
NCDRC
7. Anand Kumar Bansal v Premier Ltd., 2019 SCC OnLine NCDRC 1048
8. Indian Medical Association v. V.P Shantha And Others, 1995 SCC 6 651
9. Samira Kohli v. Dr. Prabha Manchanda & Anr., Appeal (civil) 1949 of 2004
10. Sapient Corporation Employees v. Hdfc Bank Ltd. & Ors. (2012)
11. Laxman Balkrishna Joshi (Dr) v. Dr. Trimbak Bapu Godbole, reported in AIR 1969 SC 12
12. Jacob Mathew v. State of Punjab 2005 6 SCC 1
13. A.S Mittal v. State of U.P., (1989) 3 SCC 223
14. Spring Meadows Hospital And Another v. Harjol Ahluwalia Through K.S Ahluwalia And
Another (1998 SCC 4 39, Supreme Court Of India, 1998
15. Smt. Savita Garg v. National Heart Institute AIR 2004 SC 5088 = (2004) 8 SCC 56
= 2004 AIR SCTh 5820
16. Balaram Prasad v. Kunal Naha (2014) 1 SCC 384
17. V. Kishan Rao v. Nikhil Super Speciality Hospital And Another (2010 SCC 5 513,
Supreme Court Of India, 2010)
18. V.Ganesh alias Azhagu (died) & Ors v. K.S.Shanmuga Sundaram & Anr (Madras High
Court, 2009)
19. V.Ganesh Alias Azhagu (Died) v. Dr.K.S.Shanmuga Sundaram (Madras High Court, 2009)
20. Dr. M.V. Sushhanth, L.K. Hospital Pvt. Limited, Sri Venkateshwara Hospital, v. 1.M.
Narotham Munumakulu narotham, Son of M. Chandrakanth, (State Consumer Disputes
Redressal Commission, 2017)
21. CHIEF MEDICAL OFFICER, ISPAT HOSPITAL & 4 ORS. v. PETER ANAND KUMAR
EKKA & 3 ORS. (National Consumer Disputes Redressal Commission, 2023
22. MRS. SURABHI KHURANA v. GOYAL HOSPITAL & ORS. (State Consumer Disputes
Redressal Commission, 2023

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23. Salem Advocate Bar Association, T.N v. Union Of India . (2003 SCC 1 49)
24. Cellular Operators Association Of India And Others v. Telecom Regulatory Authority Of
India And Others (2016 SCC 7 703)
25. Service I-AN, “Actors Govinda, Jackie Shroff Fined Rs 20,000 over Oil Endorsement”
(NDTV.com November 24, 2019)
26. Network LN, “No Hair Growth as Promised in Advertisement: Consumer COURT
PENALIZES Brand Ambassador for False Claim” (Live Law January 4, 2021)
27. Yamini Manohar Petitioner(s) v. T.k.d. Keerthi (s). Supreme Court Of India, 2023

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Statutes Referred:
1. The Consumer Protection Act,2019
2. The Sale of Goods and Services Act,1930
3. The Arbitration and Conciliation Act, 1996
4. The Mediation Act, 2023
5. Code of Civil Procedure,1908
6. Consumer Protection (Mediation) Rules, 2019
7. Drugs and Cosmetics Act, 1940
8. The Constitution of India, 1950

Other Guidelines Referred:

1. Guidelines for Prevention of Misleading Advertisements and Endorsements for

Misleading Advertisements' (Misleading Ads & Endorsement Guidelines) in 2022
2. The Bureau of Indian Standards (BIS) Category I Entry 46) IS 4094:1967 Sterilizer
Category 12 Entry 1 IS 10150:1981 guides for sterilization

Other authorities:

www.scconline.com
www.manupatrafast.com
www.casemine.com

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 STATEMENT OF JURISDICTION
THE APPELLANT HUMBLY SUBMITS THIS MEMORANDUM BEFORE THE
HON’BLE SUPREME COURT OF VENGADAM AS A TRANSFER PETITION UNDER
ARTICLE 139A1 OF THE CONSTITUTION AND WRIT PETITION UNDER ARTICLE
322.

1
Constitution of Vengadam, Article 139A
2
Constitution of Vengadam Article 32

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 STATEMENT OF FACTS
1. The Union of Vengadam, a South Asian country, is a union of 28 states. It has a
written Constitution and a federal democratic pattern of government. The total
population of Vengadam is more than 1.4 billion as per the recent statistics. The
country has a glorious tradition of public health, and there exists a Ministry of
Health Care at the Centre from 1947 onwards.

2. As per the Constitution of Vengadam, health is a ‘State’ subject, and hence, the
different state governments have taken several measures to ensure basic healthcare
facilities in their states. Moreover, since ancient times, there has been an active
involvement of private players in the healthcare sector. Together with the initiatives
of the Central Government, State Governments and private players, the health
sector in Vengadam has made enormous strides over the past decades. As a result,
the life expectancy of individuals in the country has crossed 70 years,

3. Over the years, Medical Tourism has flourished in the Union of Vengadam and is
rapidly developing as a ‘Healing Center of the world. It is estimated that every year,
approximately 3 million patients visit Vengadam from about 100 countries in the
world. As a result, Vengadam stands at number 5 in the Global Medical Tourism
Index.

4. The Union of Vengadam actively participates in almost all international discussions

and conferences relating to the protection of human rights, including the rights of
consumers. It was one of the first countries in the world to enact a specific
legislation for the protection of consumers, i.e., the Consumer Protection Act, 1986,
immediately after the adoption of Guidelines for the Protection of Consumers by
the United Nations in 1985.

The Consumer protection Act, 1986 has undergone several amendments, and
finally, it was replaced with the Consumer Protection Act, 2019 in order to create
a comprehensive framework for the protection of consumers in the country. Though
the provisions of the Act do not specifically include health services under the
purview of consumer service, the Hon’ble judiciary, through interpretations, settled
that a patient is a consumer and health services are consumer services for the
purpose of consumer protection laws.

5. In May 2022, Mr. Steve and Mrs. Lisa, an Irish couple, visited Union of Vengadam.

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 While travelling in the State, they have seen several big hoardings of hospitals on
the roadside as well as in popular tourist destinations. Mr. Steve and Mrs. Lisa were
attracted to the hoardings of Pillai’s Wellness Hospital as they displayed the details
of Liposuction surgery.

6. The hoardings of Mr. Tilak Varma portray that Pillai’s Wellness Hospital is the
best hospital in the country to carry out Liposuction surgery. Mrs. Lisa was facing
the problem of over fat in her hands and was suffering pain and discomfort due to
the same for the last two years.

7. Mr. Steve and Mrs. Lisa consulted Dr. Shivaraj, a cosmetic surgeon at Pillai’s
Wellness Hospital, to overcome the problem of over fat in Lisa’s arms. Dr. Shivaraj
suggested Liposuction surgery for the removal of over fat, and accordingly, Mrs.
Lisa was admitted to the hospital. On June 4th, 2022, the said surgery was
completed. On 6th June, 2022, she started to have pain in her right hand, and a color
change was also noticed. On 8th June, 2022, it was identified that the cause of pain
in the right hand was ‘Necrosis’.

8. The Management of Pillai’s Wellness Hospital, constituted a medical team to

investigate about the unfortunate incident of Mrs. Lisa. The Medical team identified
that, the Dr. Shivaraj and his team performed the surgical procedure with utmost
care and caution and the surgical instruments used for the procedure were of high
quality. In Pillai’s Wellness Hospital, the sterilization of surgical instruments was
done with the help of various equipment supplied by Bio-Med Care Co.

9. The technicians found that the equipment used for the sterilization of instruments
used for Liposuction surgery contained a manufacturing defect.

10. The pain in Mrs. Lisa’s hand was increasing day by day and they requested free
treatment from Pillai’s Wellness Hospital. However, the Hospital denied the
request for free treatment. Mr. Steve shifted Mrs. Lisa to another well-known
hospital in the same city. About a period of 6 months of treatment and suffering,
Mrs. Lisa’s condition was improved and she got discharged from the Hospital.

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 POINT OF ARGUMENT

1. Whether Mrs. Lisa can be considered as a Consumer as per the provisions of the
Consumer Protection Act, 2019, and hence eligible to claim remedy from Bio-Med
Care Co.?

2. Whether there is any deficiency in service on the part of Pillai’s Wellness Hospital
so as to be liable to compensate Mrs. Lisa?

3. Whether the provisions conferring the right to appeal against an order issued by the
Commission based on the settlement in Mediation is Constitutionally valid?

4. Whether the provisions that empower the Central Consumer Protection Authority to
impose penalties on endorsers is Constitutionally valid?

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 SUMMARY OF ARGUMENTS

1. Whether Mrs. Lisa can be considered as a Consumer as per the provisions of the Consumer
Protection Act, 2019, and hence eligible to claim remedy from Bio-Med Care Co.?

It is humbly submitted before this Hon’ble Apex Court that Mrs. Lisa though being a foreign citizen
will be considered as a ‘Consumer’ under the purview of the Consumer Protection Act, 2019. The
Consumer Protection Act, 2019 extends to the whole of India except the State of Jammu and
Kashmir. The commission or omission of the act was within the boundaries of Vengadam. The
Consumer Protection Act, 2019 lays the concept of Product liability that encompasses claims against
manufacturers and sellers. Hence, Mrs. Lisa falls under the purview of Consumer under the
Consumer Protection Act, 2019 and is eligible to claim remedy from Bio-Med Care Co, being the
manufacturer of the product.

2. Whether there is any deficiency in service on the part of Pillai’s Wellness Hospital so as to be
liable to compensate Mrs. Lisa?
It is humbly submitted before this Hon’ble Apex Court that there is a deficiency in service on the part
of Pillai’s Wellness Hospital. Though the suggested Liposuction surgery was completed and
successful, an infection Necrosis occurs due to non-sterilised conditions during the surgical
procedure. This shows the presence of lack of reasonable duty of care by the medical practitioners
of the Pillai’s Wellness Hospital. There is a medical negligence during the surgery part of it being
the deficiency in service in providing the treatment for the infection that arose out of the surgery.
Hence, Pillai’s Wellness Hospital is to be held liable to compensate for the sufferings of Mrs. Lisa.

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3. Whether the provisions conferring the right to appeal against an order issued by the Commission
based on the settlement in Mediation is Constitutionally valid?

It is humbly submitted before this Hon’ble Apex Court that the provisions conferring the right to
appeal against an order issued by the Commission based on the settlement in Mediation is laid under
the Civil Procedure Code, 1908. This appeal ultra-vires the constitutional validity of the right to
appeal to the higher authority. The CPC,1908 allows exercising original jurisdiction before the
Court of Appeal which is authorized to hear the appeal in the Court's decision. Hence, the provisions
conferring the right to appeal against an order issued by the Commission based on the settlement in
Mediation is Constitutionally valid.

4. Whether the provisions that empower the Central Consumer Protection Authority to impose
penalties on endorsers is Constitutionally valid?

It is humbly submitted before this Hon’ble Apex Court that the Consumer Protection Act, 2019
empowers the Central Consumer Protection Authority to impose penalities on endorsers and lays
the liability and accountability of an endorser/brand ambassador towards the consumers,in case of
a consumer dispute related to the misleading advertisement. Section 10 of the Consumer Protection
Act, 2019, empowers CCPA to regulate matters relating to violation of the rights of consumers,
unfair trade practices and false or misleading advertisements which are prejudicial to the interests
of the public and consumers and to promote, protect and enforce the rights of consumers. Hence,
the provisions that empower the Central Consumer Protection Authority to impose penalties on
endorsers is Constitutionally valid.

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 ARGUMENTS ADVANCED

1. Whether Mrs. Lisa can be considered as a Consumer as per the provisions of the
Consumer Protection Act, 2019, and hence eligible to claim remedy from Bio-
Med Care Co.?
It is humbly submitted before this Hon’ble Supreme Court of Vengadam that, Mrs. Lisa though
being a foreign citizen will be considered as a ‘Consumer’ under the purview of the Consumer
Protection Act, 2019.
1.1 Interpretation of the term ‘Consumer’ as given under the Consumer Protection Act,
2019
The term "CONSUMER" in reference to goods in specific under the Consumer Protection Act,
2019
“means ‘any person’ who buys any goods for a consideration which has been paid or promised
or partly paid and partly promised, or under any system of deferred payment and includes any
user of such goods other than the person who buys such goods for consideration paid or
promised or partly paid or partly promised or under any system of deferred payment when such
use is made with the approval of such person, but does not include a person who obtains such
goods for resale or for any commercial purpose.”3
The above definition of ‘Consumer’ under the CPA,2019 states that ‘any person’ that includes
an Indian citizen or a Foreign citizen come under the purview of ‘Consumer’ under the act.
S. 2 (5) (i) provides that “complainant means a consumer”4 and the Chapeau of S. 2 (7) states
that “consumer means any person.” A conjoint reading of both these provisions entails that a
complainant could be any person that in terms of S. 2 (7) buys, hires or avails of any services
or goods for a consideration. The only bar in these provisions is that such hiring or buying or
availing of goods or services must not be for commercial purposes. It is also important to
understand that S. 2 (7) uses the term “any person” that may include both natural as well as
juristic persons such as companies or firms. No express bar or distinction in this regard has been
made in the Act.5
In order to fortify this observation, the case of Jayanta Dasgupta v. Binata Debnath and Anr.6,
2009 SCC OnLine NCDRC 55, would be opposite for perusal. In this case, the Complainant was

3
The Consumer Protection Act, 2019 s. 2 (7)
4
The Consumer Protection Act, 2019 s. 2 (5)
5
Supra 1
6
Jayanta Dasgupta v. Binata Debnath and Anr.6, 2009 SCC OnLine NCDRC 55

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a British Citizen and despite existence of this fact, the National Consumer Disputes Redressal
Commission i.e., the Apex Body for deciding consumer disputes, entertained the Consumer
Complaint and awarded in favour of the Complainant who was a British Citizen. Though this case-
law does not deal with the locus of a foreigner to institute consumer complaints in express terms,
yet the very fact that such Complaint was allowed to be entertained goes on to show that the
National Consumer Disputes Redressal Commission did not think it necessary to have gone into
such question.
In the case of Prakash v. Phulavati (2016) 2 SCC 367, in para 19, the Apex Court observed thus:—
“19. Interpretation of a provision depends on the text and the context. Normal rule is to read the
words of a statute in ordinary sense. In case of ambiguity, rational meaning has to be given. In
case of apparent conflict, harmonious meaning to advance the object and intention of legislature
has to be given.”
Herein as per the very decision of this court itself, the the meaning of the definition of consumer
has to be understood in an ordinary sense to include any person irrespective of their nationality
with the only restriction being the goods should be purchased for personal use. Since there is an
apparent conflict it would be judicious to interpret the term consumer in a way which would
further the object and intention of the legislative, that is, to protect the rights of the consumers.
1.2 Manufacturer’s duty of care overrides privity of contract
In Anant Raj Agencies v. TELCO8, the company purchased a car for the private use of a director
of the company. The car had serious defects and it stopped working altogether. The complainant
claimed the replacement of the car or the refund of price with interest. It was held that the car had
not been purchased for the profit-making activity of the company on large scale. There was no
nexus between the purchase of the car and profit-making activity of the company. The
complainant was a consumer and the complaint was admissible under the C.P.A.

The Consumer Protection Act, 2019 extends to the whole of India except the State of Jammu and
Kashmir.9 The commission or omission of the act was within the boundaries of Vengadam i.e, the
Liposuction surgery of Mrs. Lisa took place within the territories of Vengadam and falls under
the purview of CPA,2019.

The Consumer Protection Act, 2019 lays the concept of Product liability that encompasses claims
against manufacturers and sellers.10 Bio-Med Care is a sterilization manufacturing company. The

7
Prakash v. Phulavati (2016) 2 SCC 36
8
Anant Raj Agencies v. TELCO
9
The Consumer Protection Act, 2019
10
Supra 6

14
Lipo-suction surgery involved the process of sterilization. In case of Mrs. Lisa the surgery was
successful but the equipment used for the sterilization of instruments used for Liposuction surgery
contained a manufacturing defect. Product liability encompasses claims against companies
accused of producing or selling faulty products.11
The term "Product liability" is defined in Section 2(34) as
“the responsibility of a product manufacturer, service provider, or seller to compensate
consumers for harm caused by defective products or deficient services.”12
Manufacturer has a duty of care to the end consumer and that results in a product liability.

This inclusion empowers consumers to file complaints against manufacturers, service providers,
or sellers.
In the case of Donoghue v. Stevenson13, wherein when a drink was offered to the consumer with
a decomposed snail in it that caused health injury to the consumer, the consumer could hold the
manufacturer of the product liable even though the contract existed between the consumer and the
seller.
The case of Henningson v. Bloomfield Motors Inc14., where the Plaintiff bought a car from a dealer
and the car started to malfunction within 10 days of delivery which resulted in the Plaintiff’s wife
suffering injuries, it was held that the Plaintiff had to get remedy because it was a breach of the
implied warranty of safety. The fact that it was the plaintiff’s wife and not the plaintiff who got
hurt is no excuse as the product liability extended to every foreseeable user.
In the case of Jagrut Nagrik v. Baroda Automobiles Sales and Service 201015, revolved around
the complainant who had purchased a Padmini car from the dealer but subsequently found several
defects in various components of the vehicle. Despite many attempts, the defects were not rectified
by the dealer and both the manufacturer, and the dealer denied any liability. The National
Consumer Disputes Redressal Commission (NCDRC) held both of them to be liable to pay
compensation to the aggrieved complainant.
In Tata Motors Jivan Tara Building v. Rajesh Tyagi, 201316, the NCDRC opined that there is the
existence of an implied contract as to the manufacturer that the vehicle sold is not possessed of
and will not suffer from any fault or imperfection in the quality and standard required to be upheld.
This can be construed as freeing the warranties of fitness and merchantability from the shackles

11
Supra 6
12
The Consumer Protection Act, 2019 s. 2 (34)
13
Donoghue v. Stevenson
14
Henningson v. Bloomfield Motors Inc
15
Jagrut Nagrik v. Baroda Automobiles Sales and Service 201015 SCC OnLine NCDRC 250
16
Tata Motors Jivan Tara Building v. Rajesh Tyagi, 201316 SCC OnLine NCDRC 1031, the NCDRC

15
of privity. There is clear transition towards conversion of strict product liability into a full-fledged
tort, while still employing the language of warranty.
1.3 Manufacturing defect
Section 84 under the Act states the conditions under which a consumer can claim remedy against
a product manufacturer. They are as follows:17
1. There is a manufacturing defect.
2. There is a design defect.
3. There is non-confirmation to an express warranty. It does not matter if such a warranty was
made negligently or honestly.
4. There is a marketing defect that is no warning of danger in the wrong usage was given to the
consumer in the product itself.
5. In the case where there were certain specifications to be followed while manufacturing the
product and they have not been complied with.
Unreasonably dangerous goods are defective because they are likely to jeopardize the safety of a
reasonable user. The danger may be due to defective design and non-meeting of expectations of
the user. Here, the sterilization used in-due process of the Liposuction surgery of Mrs. Lisa was
of poor quality and had a manufacturing defect so as to fulfill the conditions of section 84 of the
CPA,2019.
The term ‘defect’ is defined under Section 2 (10) of Consumer Protection Act, 201918 as
“any fault, imperfection or shortcoming in the quality, quantity, potency, purity or
standard which is required to be maintained by or under and law for the time being
in force or under any contract, express or implied or as is claimed by the trader in
any manner whatsoever in relation to any goods or products and the expression
‘defective’ shall be construed accordingly.”
In the case of Anand Kumar Bansal v Premier Ltd., 2019 SCC OnLine NCDRC 104819,the
Consumer Commission relied on Black’s Law Dictionary to define the term ‘manufacturing
defect as “a deviation from design specifications during production resulting in a product’s
defect, frailty or shortcoming”
The Act imposes strict liability on the manufacturer, distributors, suppliers and retailers for
causing injurious harm by its defective products or services. Notwithstanding any contractual
obligations and limitations of the liability, if a product or any of its components fails to comply

17
The Consumer Protection Act, 2019 s. 84
18
The Consumer Protection Act, 2019 s. 12
19
Anand Kumar Bansal v Premier Ltd., 2019 SCC OnLine NCDRC 1048

16
with the necessary standards and therefore causing a defect in the product, shall make the
manufacturer of the product directly liable for damages under the Act or the common law of
negligence. Subsequently, the action can be brought for injury, death or any damages caused to a
person or property under the Act due to a defect of the product. This means that there is no need
for consumers to prove that the manufacturer was negligent for filing the suit against the
manufacturer. The consumer only needs to prove that the defect in the product, the damage or
injury was caused to the consumer by the product or service only.
The Bureau of Indian Standards (BIS) Category I Entry 46) IS 4094:196720 sets the standards for
sterilizers which are to be used in hospitals especially for surgical procedures. There is clearly a
case of manufacturing defect since the technical personnel found issues with the sterilizing
equipment supplied by Bio-Med which signifies that it was not meeting the prescribed standards.
1.4 Need to claim compensation under Consumer Protection Act, 2019
In India, medical devices are primarily regulated by the Drugs and Cosmetics Act, 194021, along
with the Medical Device Rules (MDR)22. The MDR does not currently contain provisions for
mandatory compensation to be provided to patients in the event of an adverse event, outside of a
clinical trial. In addition, action under the regulatory framework can only be initiated by the
drug/medical device regulator and not by an individual patient. Therefore, for a patient to claim
compensation for a defective medical device, one of the little recourse available under the existing
framework is to approach the consumer forum and initiate action under the CPA 1986.
In case of Mrs. Lisa, there is a clear notion of the failure of Lipo-suction surgery due to the poor
sterilization of the equipment. The sterilization manufactured by the Bio-Med Care was poor in
its quality and there was a manufacturing defect with the product that led to Necrosis, an infection
that usually arises due to improper sterilization of the surgical equipment.23

Hence, Mrs. Lisa falls under the purview of Consumer under the Consumer Protection Act, 2019
and is eligible to claim remedy from Bio-Med Care Co, being the manufacturer of the product.

20
Bureau of Indian Standards (BIS) Category I Entry 46) IS 4094:1967
21
The Drugs and Cosmetics Act, 1940
22
The Medical Device Rules (MDR)
23
https://medlineplus.gov/ency/article/002266.htm#:~:text=Necrosis%20is%20the%20death%20of,Necrosis%20
cannot%20be%20reversed.

17
2. Whether there is any deficiency in service on the part of Pillai's Wellness Hospital so
as to be liable to compensate Mrs. Lisa?

It is humbly submitted before this Hon’ble Apex Court that there is a deficiency in service on the
part of Pillai’s Wellness Hospital.
2.1 Deficiency in service
Service is an intangible benefit availed by the consumer from the service provider.24 The term
‘service’ is defined under Section 2(42) of the Consumer Protection Act, 201925,
“which include facilities related to banking, financing, insurance, telecom, processing,
transport, etc.”
Though the suggested Liposuction surgery was completed and successful, an infection
Necrosis occurs due to issues with sterilization during the surgical procedure.
According to Section 2(11) of the Consumer Protection Act, 2019,26
“deficiency is any sort of fault, imperfection, shortcoming or defect in the feature,
quality, amount, nature, worth, authenticity, capacity and standard which is
obligatory to be maintained and regulated as per the laws and statutes in function
or any agreement/contract claimed by the seller, with respect to the products and
goods. Including any act of negligence, omission or commission by the seller which
causes loss to the consumer, which a prudent seller is supposed to do or is supposed
to omit, but deliberately does the contrary, such actions amount to ‘deficiency of
service’.”
In any buyer-seller relationship, deficiency of service prevails. Such as legal aid, banks,
railways, construction, transportation, education, electricity, entertainment, restaurant,
hospitality, etc. The consequences of deficiency of service can range from inconvenience or
harassment to mental or physical injury to death, thereby leading to legal consequences.

The liability of doctor and hospital management arises when a patient is admitted. The standard
duty of care must be maintained by the hospital. When a patient is admitted, he/she is also
considered as a consumer.
Deficiency in service shows the presence of lack of reasonable duty of care by the medical

24
https://www.legalserviceindia.com/laws/consumer_services.htm#:~:text=Services%20as%20per%20sec%202,
of%20news%20or%20other%20information.
25
The Consumer Protection Act, 2019 s. 2(42)
26
The Consumer Protection Act, 2019 s. 11

18
practitioners of the Pillai’s Wellness Hospital. Reasonable degree of care and skill means that
the degree of care and competence that an “ordinary competent member of the profession who
professes to have those skills would exercise in the circumstance in question.”27 At this stage,
it may be necessary to note the distinction between the standard of care and the degree of care.
The standard of care is a constant and remains the same in all cases. It is the requirement that
the conduct of the doctor be reasonable and need not necessarily conform to the highest degree
of care or the lowest degree of care possible. The degree of care is a variable and depends on
the circumstance. It is used to refer to what actually amounts to reasonableness in a given
situation.
India is recording a whopping 5.2 million injuries each year due to medical errors and adverse
events in the medical field28
In the case of Indian Medical Association v. V.P Shantha And Others, 1995 SCC 6 65129, the
Court held that medical practitioners and hospitals/nursing homes are not immune from a claim
for damages on the ground of negligence and, therefore, they are not outside the purview of the
provisions of the Act. The Court also held that the composition of the Consumer Disputes
Redressal Agencies is suitable for adjudicating on issues arising in a complaint regarding
deficiency in service rendered by a medical practitioner.
In the case of Samira Kohli v. Dr. Prabha Manchanda & Anr., Appeal (civil) 1949 of 200430,
The Hon'ble Supreme Court held the respondent guilty of assault and battery amounting to
deficiency in service, and awarded Rs 25,000 as compensation for the unauthorized surgery to
the appellant and exempted the respondent from receiving any fee for the surgery.
In India, Bolam test has broadly been accepted as the general rule. Referring to Section 2(1)(g)
of the Consumer Protection Act, 2019, which defines 'deficiency' as any fault, imperfection,
shortcoming, or inadequacy in the quality, nature, or manner of performance of a service. Bio
med deficiency of service.
In case of Sapient Corporation Employees v. Hdfc Bank Ltd. & Ors. (2012)31 a consumer
complaint was filed by Sapient Corporation Employees Provident Fund Trust against HDFC
bank Ltd. The complainant claimed that OP-Bank has committed deficiency of services by
debiting the account of the Complainant. The court in this case held that there was no deficiency

27
Rathanlal & Dhirajlal, The law of Torts, (LexisNexis, 28th edn.)
28
Jha AK, Larizgoitia I, Audera-Lopez C, Prasopa-Plaizier N, Waters H, Bates DW. The global burden of
unsafe medical care: analytic modelling of observational studies. BMJ Qual Saf 2013;22:809-15
29
Indian Medical Association v. V.P Shantha And Others, 1995 SCC 6 651
30
Samira Kohli v. Dr. Prabha Manchanda & Anr., Appeal (civil) 1949 of 2004
31
Sapient Corporation Employees v. Hdfc Bank Ltd. & Ors. (2012)

19
of service on the part of OP-bank and the arguments contented by the complainant are baseless.
A behaviour that conforms to the direction of regulatory authority cannot be said to be
negligence or service deficiency.

In general terms, Negligence is simply the failure to exercise due care. The three ingredients of
negligence are as follows:32
 The defendant owes a duty of care to the plaintiff.
 The defendant has breached this duty of care.
 The plaintiff has suffered an injury due to this breach.

In the case of Laxman Balkrishna Joshi (Dr) v. Dr. Trimbak Bapu Godbole, reported in AIR
1969 SC 1233, the Hon’ble Supreme Court had held that:
“11. The duties which a doctor owes to his patient are clear. A person who holds
himself out ready to give medical advice and treatment impliedly undertakes that he is
possessed of skill and knowledge for the purpose. Such a person when consulted by a
patient owes him certain duties viz. a duty of care in deciding whether to undertake
the case, a duty of care in deciding what treatment to give or a duty of care in the
administration of that treatment. A breach of any of those duties gives a right of action
for negligence to the patient. The practitioner must bring to his task a reasonable
degree of skill and knowledge and must exercise a reasonable degree of care. Neither
the very highest nor a very low degree of care and competence judged in the light of
the particular circumstances of each case is what the law requires34 (cf. Halsbury's
Laws of England 3rd Edn. Vol. 26 p. 17). The doctor no doubt has a discretion in
choosing treatment which he proposes to give to the patient and such discretion is
relatively ampler in cases of emergency.”
This Court in a landmark judgment in Jacob Mathew v. State of Punjab 2005 6 SCC 135 while
dealing with the case of negligence by professionals also gave illustration of legal profession.
The Court observed as under: (SCC p. 18, para 18)

“18. In the law of negligence, professionals such as lawyers, doctors, architects and others

32
supra 25
33
Laxman Balkrishna Joshi (Dr) v. Dr. Trimbak Bapu Godbole, reported in AIR 1969 SC 12
34
cf. Halsbury's Laws of England 3rd Edn. Vol. 26 p. 17
35
Jacob Mathew v. State of Punjab 2005 6 SCC 1

20
are included in the category of persons professing some special skill or skilled persons
generally. Any task which is required to be performed with a special skill would generally
be admitted or undertaken to be performed only if the person possesses the requisite skill
for performing that task. Any reasonable man entering into a profession which requires a
particular level of learning to be called a professional of that branch, impliedly assures
the person dealing with him that the skill which he professes to possess shall be exercised
[and exercised] with reasonable degree of care and caution.
2.2 Doctrine of Res Ipsa Loquitor
Doctrine of Res Ipsa Loquitor (the thing speaks for itself) has to be applied in cases wherein
medical negligence is evident. There has been a clear case of negligence which is evidently
established via the consequences which Mrs. Lisa had to go through.
In the case of V. Kishan Rao v. Nikhil Super Specialty Hospital And Another36 in para 50
50. In a case where negligence is evident, the principle of res ipsa loquitur operates and the
complainant does not have to prove anything as the thing (res) proves itself. In such a case it is
for the respondent to prove that he has taken care and done his duty to repel the charge of
negligence.
In the case of A.S Mittal v. State of U.P.37, the Court quoted Street on Torts (1983) (7th Edn.)38
wherein it was stated that the doctrine of res ipsa loquitur was attracted:
“Where an unexplained accident occurs from a thing under the control of the
defendant, and medical or other expert evidence shows that such accidents would not
happen if proper care were used, there is at least evidence of negligence for a jury.”
2.3 Hospitals when can be held liable
Hospitals can be held liable for medical negligence when there is a deficiency in their
services or when they fail to provide proper medical treatment. The hospital may be
vicariously liable for the acts of the doctors employed by them.
Hospitals can be held liable if they do not provide necessary services despite extracting
money from patients and their families.
Hospitals may be liable for medical negligence if they do not ensure that their doctors and
staff members exercise reasonable care, skill, and diligence in providing medical
treatment.
Hospitals can be held liable for medical negligence if they fail to provide the necessary

36
V. Kishan Rao v. Nikhil Super Speciality Hospital And Another (2010 SCC 5 513)
37
A.S Mittal v. State of U.P., (1989) 3 SCC 223
38
Street on Torts (1983) (7th Edn.)

21
facilities, equipment, or resources required for proper medical treatment.
Reasoning:
In Spring Meadows Hospital And Another v. Harjol Ahluwalia Through K.S Ahluwalia And
Another (1998 SCC 4 39, Supreme Court Of India, 1998)39 The Supreme Court observed that
“The true position is that an error of judgement may, or may not, be negligent, it depends on the
nature of the error. If it is one that would not have been made by a reasonably competent
professional man professing to have the standard and type of skill that the defendant holds
himself out as having, and acting with ordinary care, then it is negligence. If on the other hand,
it is an error that such a man, acting with ordinary care, might have made, then it is not
negligence.” It thus includes persons who hire services as well as beneficiaries of services.
This decision of the Supreme Court highlights that Medical Professionals which includes
Doctors, Nurses, Clinics, Hospitals including the Para Medical staff have to be wary of
administering proper drugs and even taking care of the patients. A thorough due-diligence of the
patient’s history and knowledge of the medicines is extremely important before taking any action.

In Smt. Savita Garg v. National Heart Institute40, it was held that doctors who are staff
of hospital are on ‘contract of service’, while doctors on panel whose services are
requisitioned from time to time by hospital are on ‘contract for service’. Hospital is
controlling authority of both – quoted with approval in Balaram Prasad v. Kunal Naha41.

Other landmark Judgements:

- V. Kishan Rao v. Nikhil Super Speciality Hospital And Another (2010 SCC 5 513, Supreme
Court Of India, 2010)42
- V.Ganesh Alias Azhagu (Died) v. Dr.K.S.Shanmuga Sundaram (Madras High Court, 2009)43
- Dr. M.V. Sushhanth, L.K. Hospital Pvt. Limited, Sri Venkateshwara Hospital, v. 1.M. Narotham
Munumakulu narotham, Son of M. Chandrakanth, (State Consumer Disputes Redressal
Commission, 2017)44

39
Spring Meadows Hospital And Another v. Harjol Ahluwalia Through K.S Ahluwalia And Another (1998
SCC 4 39, Supreme Court Of India, 1998
40
Smt. Savita Garg v. National Heart Institute AIR 2004 SC 5088 = (2004) 8 SCC 56 = 2004 AIR
SCTh 5820
41
Balaram Prasad v. Kunal Naha (2014) 1 SCC 384
42
V. Kishan Rao v. Nikhil Super Speciality Hospital And Another (2010 SCC 5 513, Supreme Court Of India,
2010)
43
V.Ganesh Alias Azhagu (Died) v. Dr.K.S.Shanmuga Sundaram (Madras High Court, 2009)
44
Dr. M.V. Sushhanth, L.K. Hospital Pvt. Limited, Sri Venkateshwara Hospital, v. 1.M. Narotham

22
- Chief Medical Officer, Ispat Hospital & 4 Ors. V. Peter Anand Kumar Ekka & 3 Ors. (National
Consumer Disputes Redressal Commission, 2023)45
- Mrs. Surabhi Khurana V. Goyal Hospital & Ors. (State Consumer Disputes Redressal
Commission, 2023)46

Hence, Pillai’s Wellness Hospital is to be held liable to compensate for the sufferings of Mrs.
Lisa.

Munumakulu narotham, Son of M. Chandrakanth, (State Consumer Disputes Redressal Commission, 2017)
45
CHIEF MEDICAL OFFICER, ISPAT HOSPITAL & 4 ORS. v. PETER ANAND KUMAR EKKA & 3 ORS.
(National Consumer Disputes Redressal Commission, 2023
46
MRS. SURABHI KHURANA v. GOYAL HOSPITAL & ORS. (State Consumer Disputes Redressal
Commission, 2023

23
3. Whether the provisions conferring the right to appeal against an order issued by the
Commission based on the settlement in Mediation is Constitutionally valid?

It is humbly submitted before this Hon’ble Court that the provisions conferring the
right to appeal against an order issued by the Commission based on settlement in
Mediation are constitutionally valid.

3.1 Right to Appeal

This issue touches upon the fundamental principles of access to justice, fairness and
the right to appeal in a legal framework. The right to appeal is a fundamental aspect of
due process and procedural fairness. It allows parties to seek redressal and review of
decisions that may have been made erroneously or unfairly. In the context of consumer
protection laws the right to appeal ensures that consumers have avenues to challenge
decisions that may not adequately address their grievances or provide appropriate
remedies. In the case of mediation while the aim is to facilitate amicable resolution of
disputes parties should still have the option to seek further redressal through the
appellate process if they are dissatisfied with the outcome. Denying parties, the right
to appeal against a mediation settlement could potentially undermine the principles of
fairness and justice. Furthermore the right to appeal against a mediation settlement
does not necessarily negate the benefits of mediation. It simply provides an additional
layer of recourse for parties to address any concerns or issues that may have arisen
during the mediation process or in the settlement agreement.47

The provisions conferring the right to appeal against an order issued by the
Commission based on the settlement in Mediation are Constitutionally valid.

Settlement by 'Mediation' means the process by which a mediator appointed by parties

or by the Court, as the case may be, mediates the dispute between the parties to the
suit by the application of the provisions of the Mediation Rules, 2003 in Part II, and in
particular, by facilitating discussion between parties directly or by communicating
with each other through the mediator, by assisting parties in identifying issues,
reducing misunderstandings, clarifying priorities, exploring areas of compromise,

47
https://www.legalserviceindia.com/article/l63-Appeals.html

24
generating options in an attempt to solve the dispute and emphasizing that it is the
parties own responsibility for making decisions which affect them.48

3.2 Matters not to be referred to mediation

Rule 449 of Consumer Protection (Mediation) Rules, 2020 enlists matter which cannot be
brought forth for mediation in which Rule 4 (a) applies to the case and yet it had been referred
to mediation. This is one of the grounds Mrs. Lisa had appealed to the State Consumer Dispute
Redressal Commission.

Section 6 of the Mediation Act,2023 states that a mediation under this Act shall not be
conducted for resolution of any dispute or matter contained in the indicative list under the
First Schedule: Provided that nothing contained herein shall prevent any court, if deemed
appropriate, from referring any dispute relating to compoundable offences including the
matrimonial offences which are compoundable and pending between the parties, to mediation:
Provided further that the outcome of such mediation shall not be deemed to be a judgment or
decree of court referred to in sub-section (2) of section 27, and shall be further considered by
the court in accordance with the law for the time being in force. (2) If the Central Government
is satisfied that it is necessary or expedient so to do, it may, by notification, amend the First
Schedule.

First Schedule

Complaints or proceedings, initiated before any statutory authority or body in relation to

registration, discipline, misconduct of any practitioner, or other registered professional, such
as legal practitioner, medical practitioner, dentist, architect, chartered accountant, or in
relation to any other profession of whatever description, which is regulated under any law for
the time being in force.

3.3 Significance and impact of ADR

The Supreme Court, in various judgments, has recognized the importance of alternative
dispute resolution mechanisms such as mediation in promoting speedy and efficient
resolution of disputes. The right to appeal is not an absolute right but a creature of statute,
and if the Legislature deems fit not to provide the remedy of appeal in certain cases, it is

48
Mediation Rules, 2003
49
Consumer Protection (Mediation) Rules, 2020, Rule 4

25
within its legislative competence to do so. Therefore, the provisions conferring the right to
appeal against an order issued by the Commission based on the settlement in Mediation are
Constitutionally valid.

Relevant Judgments:

- Salem Advocate Bar Association, T.N v. Union Of India . (2003 SCC 1 49, Supreme
Court Of India, 2002)50

It is also essential to note that when the said settlement was reached there was no
settlement amount which had been decided upon in spit of such grievous injury which
rendered her temporarily disabled from using her right hand for a period of 6 months.
A significant fact is that Pillai hospital backed off from taking responsibility and
providing free treatment due to the harm caused due to their negligence due to which
she had to be shifted and treated at another hospital.

In conclusion the provisions conferring the right to appeal against an order issued by
the Commission based on settlement in Mediation are essential for upholding the
principles of justice fairness and access to legal remedies. These provisions ensure that
parties have the opportunity to seek review and redressal in cases where the mediation
settlement may not adequately address their concerns. Therefore, it can be argued that
such provisions are constitutionally valid and in line with the objectives of consumer
protection laws.

Cellular Operators Association Of India And Others v. Telecom Regulatory Authority

Of India And Others51 .In the case, the provisions conferring the right to appeal against
an order issued by the Commission based on the settlement in Mediation are
Constitutionally valid. This is because the Supreme Court has recognized the
importance of alternative dispute resolution mechanisms such as mediation in
promoting speedy and efficient resolution of disputes. The right to appeal is not an
absolute right but a creature of statute, and if the Legislature deems fit not to provide
the remedy of appeal in certain cases, it is within its legislative competence to do so.

50
Salem Advocate Bar Association, T.N v. Union Of India . (2003 SCC 1 49, Supreme Court Of India, 2002
51
Cellular Operators Association Of India And Others v. Telecom Regulatory Authority Of India And Others
(2016 SCC 7 703)

26
The judgments in Salem Advocate Bar Association, T.N v. Union Of India 52 support
the Constitutionality of such provisions.

Section 89. Settlement of disputes outside the Court.

[89. Settlement of disputes outside the Court. (1) Where it appears to the Court that
there exist elements of a settlement which may be acceptable to the parties, the Court
shall formulate the terms of settlement and give them to the parties for their
observations and after receiving the observations of the parties, the Court may
reformulate the terms of a possible settlement and refer the same for:--

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat: or

(d) mediation.

(2) Were a dispute has been referred--

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation
Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation
were referred for settlement under the provisions of that Act;

(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with
the provisions of sub-section (1) of section 20 of the Legal Services Authority Act,
1987 (39 of 1987) and all other provisions of that Act shall .apply in respect of the
dispute so referred to the Lok Adalat;

(c) for judicial settlement, the Court shall refer the same to a suitable institution or
person and such institution or person shall be deemed to be a Lok Adalat and all the
provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the
dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the Court shall effect a compromise between the parties and shall
follow such procedure as may be prescribed.]

52
Salem Advocate Bar Association, T.N v. Union Of India . (2003 SCC 1 49)

27
In conclusion the provisions conferring the right to appeal against an order issued by
the Commission based on settlement in Mediation are essential for upholding the
principles of justice fairness and access to legal remedies. These provisions ensure that
parties have the opportunity to seek review and redressal in cases where the mediation
settlement may not adequately address their concerns. Therefore it can be argued that
such provisions are constitutionally valid and in line with the objectives of consumer
protection law.

28
4. Whether the provisions that empower the Central Consumer Protection Authority
to impose penalties on endorsers is Constitutionally valid?

It is humbly submitted before this Hon’ble Court that the provisions that empower the Central
Consumer Protection Authority to impose penalties on endorsers are Constitutionally valid. The
Central Consumer Protection Authority has been established to protect the rights of consumers
and ensure the proper functioning of the consumer market. The power to impose penalties on
endorsers is aimed at holding them accountable for false or misleading advertisements that may
deceive consumers. Such provisions are in line with the objective of consumer protection and
do not violate any Constitutional rights. Therefore, the provisions that empower the Central
Consumer Protection Authority to impose penalties on endorsers are Constitutionally valid.

4.1 Provisions relating to endorsers and endorsements

An endorser is usually a celebrity (could be organizations too) who opines that a product or
service is good and worthy of purchase. The endorser is typically not the manufacturer or seller
of the product. An advertiser is often the seller of a product or provider of a service or even a
brand, since such a person has an incentive in promoting the product or service, and could also
be the manufacturer of the product.53

The Consumer Protection Act, 2019 (CPA)54 which has recently been brought into force,
includes express provisions detailing the liabilities of, inter alia advertisers and endorsers.
While a complaint could always be filed against a trader or a service provider (trader includes
a manufacturer), advertisers and endorsers may also now incur liability for a misleading
advertisement.

An “endorser” is not defined under CPA, however, Section 2(18) of CPA55 defines
“endorsement”, in relation to an advertisement, as (i) any message, verbal statement,
demonstration; or (ii) depiction of the name, signature, likeness or other identifiable personal
characteristics of an individual; or (iii) depiction of the name or seal of any institution or
organisation, which makes the consumer believe that it reflects the opinion, finding or
experience of the person making such endorsement.

53
The Consumer Protection Act, 2019 s. 2(81)
54
The Consumer Protection Act, 2019
55
The Consumer Protection Act, 2019 s. 2(81)

29
In relation to any product or service, an advertisement is misleading if it: (i) falsely describes
such product or service; (ii) gives a false guarantee to mislead the consumers as to the nature,
substance, quantity or quality of a product or service; (iii) conveys an express or implied
representation which would constitute an unfair trade practice; or (iv) deliberately conceals
important information.

Section 21 of CPA56 deals with the power of the Central Consumer Protection Authority
(CCPA) to issue directions and penalties against false or misleading advertisements. Section
21(1)57 places endorsers or par with advertisers, traders, manufacturers and publishers. It states
that where the CCPA is satisfied after an investigation that any advertisement is false or
misleading and is prejudicial to the interest of any consumer or is in contravention of consumer
rights, it may issue directions to the concerned trader or manufacturer or endorser or advertiser
or publisher to discontinue such advertisement or to modify the same in such manner and within
such time as may be specified in that order. While it is unlikely that an endorser would be in a
position to modify or discontinue an advertisement, the CCPA has the discretion and freedom
to pass such an order on an endorser if it is necessary to do so.

Section 21(2)58 applies only to manufacturers and endorsers and does not cover advertisers.
However, since a manufacturer may be the advertiser, the advertiser may also be covered by
Section 21(2) which provides that in addition to any order passed under Section 21(1) the
Central Authority may also impose a fine of up to ten lakh rupees on any manufacturer or
endorser in respect of any false or misleading advertisement. Any subsequent offence attracts a
penalty extending up to fifty lakhs rupees.

Sections 21(3)59 and (5)60 apply only to endorsers. The CCPA may under Section 21(3) prohibit
the endorser of a false or misleading advertisement from making endorsement of any product
or service for a period of up to one year. In case of any repeat offence by an endorser, the
prohibit on endorsement may extend to three years. Section 21(5) states that no endorser shall
be liable to a penalty under sub-sections (2) and (3) if he has exercised due diligence to verify
the veracity of the claims made in the advertisement regarding the product or service being
endorsed by him.

56
The Consumer Protection Act, 2019 s.21
57
The Consumer Protection Act, 2019 s. 21(1)
58
The Consumer Protection Act, 2019 s. 21(2)
59
The Consumer Protection Act, 2019 s. 21(3)
60
The Consumer Protection Act, 2019 s. 21(5)

30
Section 16 of CPA61 also empowers the District Collector to inquire into or investigate
complaints which have been referred to them by the CCPA or Commissioner of a regional office
regarding the violation of rights of consumers as a class regarding unfair trade practices, the
violation of consumer rights, and false or misleading advertisements. It is unclear whether
misleading advertisements would include endorsements as well.

4.2 Protects against the violation of Article 1962

This very court went ahead by extending the protection of Article 19 (1) (a) not only to
advertisers but also consumers. It was laid down that this Article guarantees not only
the freedom of speech and expression; it also protects the rights of the individual to
listen, read and receive the said speech. So far as the economic needs of citizens are
concerned, their fulfilment has to be guided by their information disseminated through
the advertisements.
The protection of Article 19 (1) (a) is available to the speaker as well to the recipient of
the speech. It is crucial that the the rights of the recipients are also protected. According
to the Ministry of Education, literacy rate in rural India stands at 67.77 per cent, while
in urban India, it is 84.11 per cent63, which clearly indicated the percentile of population
susceptible to being misled. Apart from this there is no guarantee to establish he fact
that the literate sectors of the society are aware enough to certain the technical aspects
of the products which could further lead to their harm.
The relevant statute falls within the reasonable restrictions laid down for Article 19(1)
(g) which are mentioned under Article 19 (6)64. The relevant provision has been created
to impose a restriction for the interests of the general public. The Constitution also
confers the right to the state to make appropriate laws with the only bar being reasonable
restrictions65

61
The Consumer Protection Act, 2019 s. 16
62
The Constitution of India, 1950, Art 19
63
Kumar, R. (2023) ‘International Literacy Day 2023: Know About Remarkable Progress Made By India’,
NDTV, 8 September. Available at: https://www-ndtv-
com.cdn.ampproject.org/v/s/www.ndtv.com/education/international-literacy-day-2023-know-about-remarkable-
progress-made-by-india-
4370870/amp/1?amp_gsa=1&amp_js_v=a9&usqp=mq331AQIUAKwASCAAgM%3D#amp_tf=From%20%251
%24s&aoh=17092074660188&referrer=https%3A%2F%2Fwww.google.com&ampshare=https%3A%2F%2Fww
w.ndtv.com%2Feducation%2Finternational-literacy-day-2023-know-about-remarkable-progress-made-by-india-
4370870 (Accessed: 20 February 2024).
64
The Constitution of India, 1950, Art 19 (6)
65
Khoday Distilleries Ltd. v. State Of Karnataka, 1995 SCC 1 574

31
4.3 Need for imposition of penalties

Service I-AN, “Actors Govinda, Jackie Shroff Fined Rs 20,000 over Oil Endorsement”
(NDTV.com November 24, 2019)66 In a case before the Muzaffarnagar Consumer Court, actors
Govinda and Jackie Shroff were fined ₹20,000 for endorsing an herbal oil that claimed
guaranteed pain relief in 15 days or else a complete refund. The complainant alleged that the
actor’s endorsement made him trust the product, but the product showed no effect, and when
the company was approached for the refund, they failed and allegedly harassed Mr Aggarwal
(consumer) when he contacted again. The court decided the case in favour of Mr Aggarwal as
the product was sold through misleading advertisement and promotion.

Network LN, “No Hair Growth as Promised in Advertisement: Consumer COURT

PENALIZES Brand Ambassador for False Claim” (Live Law January 4, 2021)67 In a similar
case of misleading advertisement, a consumer court in Kerala held the brand ambassador liable
for making false claims while endorsing a hair care product without ascertaining the
effectiveness of the product. The court ordered manufacturers of Dhathri Hair Cream and their
brand ambassador Anoop Menon who endorsed the hair care product, to pay a fine of ₹ 10,000
for making false promises and selling their product by misleading advertisement.
The provisions that empower the Central Consumer Protection Authority to impose
penalties on endorsers are Constitutionally valid. This is because the Central Consumer
Protection Authority has been established to protect the rights of consumers and ensure
the proper functioning of the consumer market. The power to impose penalties on
endorsers is aimed at holding them accountable for false or misleading advertisements
that may deceive consumers. Such provisions are in line with the objective of consumer
protection and do not violate any Constitutional rights.
The judgments in Yamini Manohar Petitioner(s) v. T.k.d. Keerthi68 and Cellular
Operators Association Of India And Others v. Telecom Regulatory Authority Of India
And Others69 support the Constitutionality of such provisions.

66
Service I-AN, “Actors Govinda, Jackie Shroff Fined Rs 20,000 over Oil Endorsement” (NDTV.com November
24, 2019)
67
Network LN, “No Hair Growth as Promised in Advertisement: Consumer COURT PENALIZES Brand
Ambassador for False Claim” (Live Law January 4, 2021)
68
Yamini Manohar Petitioner(s) v. T.k.d. Keerthi (s). (Supreme Court Of India, 2023
69
Cellular Operators Association Of India And Others v. Telecom Regulatory Authority Of India And Others
(2016 SCC 7 703)

32
4.4 Misleading advertisement
An advertisement is considered to be valid and not deceitful when it does not mislead
consumers by exaggerating the usefulness of the products or services. An advertisement
should be truthful & honest representation of facts by making disclosures in such a
manner that they are clear, prominent and extremely hard to miss for viewers to notice70.
This press release posted by the Press Information Bureau clearly highlights that the
disclosures should be clear, prominent and extremely hard to miss for viewers to notice
on the contrary the advertisement did not mention that the endorser is only assuring the
Pillai’s Hospital to the extent not amounting to the use of medical equipment sourced
from third party manufacturers.

70
Central Consumer Protection Authority imposes penalty of ₹5Lakh on Khan Study Group (KSG) Institute for
advertising misleading claims, (2023), https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1975863 (last
visited Feb 25, 2024).

33
 PRAYER
Wherefore in the light of facts presented, issues raised, arguments advanced and
authorities cited, the Counsel on behalf of the Appellants humbly prays before this
Hon’ble Court that itmay be pleased to adjudge and declare that:

1. Mrs. Lisa can be considered as a Consumer as per the provisions of the Consumer
Protection Act, 2019, and hence eligible to claim remedy of ₹15 lakhs from Bio-Med
Care Co.

2. Pillai’s Wellness Hospital so as to be liable to compensate Mrs. Lisa by paying her ₹5

lakhs

3. The provisions conferring the right to appeal against an order issued by the
Commission based on the settlement in Mediation is Constitutionally valid

4. The provisions that empower the Central Consumer Protection Authority to impose
penalties on endorsers is Constitutionally valid.

and/or
Pass any other order, direction or relief that it may deem fit in the interest of justice,
equity,fairness and good conscience.

For this act of kindness of the Respondents shall duty bound forever pray

S/d- COUNSELS for the RESPONDENTS

34
35