Concept of 'Product Liability'
The Consumer Protection Act 1986 was talking only about physical injuries and in the New Consumer Protection Act 2019 product liability has been introduced which not only talks about physical injuries but also about mental agony or emotional distress caused by any product. For instance, when you receive a faulty product it does not injure you but it injures property and in turn, causes mental distress in that situation also you can file a complaint against the manufacturer of the Product. Thus insertion of Product Liability in the Consumer Protection Act 2019 as a separate chapter is one of the most important significant additions to the act and also a new ground for filing a complaint against the manufacturer or seller of the product.
Section 2(34) defines product liability as the responsibility of the manufacturer or seller of any product or service, related to the product to compensate for any harm caused to a consumer by such defective product manufactured or sold or by a deficiency in services relating to the product. Section 2(35) provides an opportunity or allows a consumer to make a complaint/ claim against the manufacturer, seller or service provider for any defective products.
Who can be made liable and in what cases?
A product manufacturer shall be liable in a product liability action, if:
The product contains a manufacturing defect; or
The product is defective in design; or
There is a deviation from manufacturing specifications; or
The product does not conform to the express warranty; or
The product fails to contain adequate instructions of correct usage to prevent any harm or any warning regarding improper or incorrect usage.
A product manufacturer shall be liable in a product liability action even if he proves that he was not negligent or fraudulent in making the express warranty of a product.
A product seller who is not a product manufacturer shall be liable in a product liability action, if—
He has exercised substantial control over the designing, testing, manufacturing, packaging or labelling of a product that caused harm; or
He has altered or modified the product and such alteration or modification was the substantial factor in causing the harm; or
He has made an express warranty of a product independent of any express warranty made by a manufacturer and such product failed to conform to the express warranty made by the product seller which caused the harm; or
The product has been sold by him and the identity of product manufacturer of such product is not known, or if known, the service of notice or process or warrant cannot be effected on him or he is not subject to the law which is in force in India or the order if any, passed or to be passed cannot be enforced against him; or
He failed to exercise reasonable care in assembling, inspecting or maintaining such a product or he did not pass on the warnings or instructions of the product manufacturer regarding the dangers involved or proper usage of the product while selling such product and such failure was the proximate cause of the harm.
The Author is pursuing BA.LLB at School of Legal Studies, Central University of Kashmir.