Religious Institutions as Service Providers under Consumer Protection Act, 2019

“Service to mankind is Service to God”

– Swami Vivekanand[1]

Introduction

In religious sense, rendering service implies working unconditionally towards wither an animate or an inanimate object, a feeling or even towards one’s own goal or for the self. Sheer dedication is observed without hoping to receive a single fruit from their actions, for joy is believed to have attained through the very performance of these deeds[2]. This ideology forms the very basis of the Charitable Trusts to be largely excluded from the definition of service[3] and from paying taxes, since anything done out of natural love and affection cannot be assumed to be consideration[4] and henceforth, service within the meaning of both Indian Contract Act, 1872[5] and consequently under Consumer Protection Act, 2019[6].

In this case, the Trust is not a service provider since the devotees visit these sacred institutions to pray their respective deities since it is not held to be a commercial industry. This notion is similar to the provisions of education by Charitable Trusts and even Governmental Institutions, who are not held as service providers under the Consumer Protection Act, 2019 to the extent of providing education[7] – however, their students indeed are consumers within the meaning of Section 2(1)(g) in cases when these institutions provide facilities such as transport, accommodation etc. in return of a consideration amount to that effect and are proved deficient in catering the same[8]. Will this established notion be applicable to Trusts which do accept consideration for providing certain primary and secondary amenities to one and all?

Concept of Product Liability under Consumer Protection Act, 2019:

The concept of Product Liability, although largely restricted to Defect in Goods in its initial stages, first developed under the English Law when the aggrieved, due to the consumption of a good imposed a liability upon the manufacturer primarily because an implied contract existed between the two[9]. Thereafter, the verdict pronounced in Donghue V. Stevenson[10] removed all the diverse opinion with regards to the liability of manufacturers to third-party consumers by relying upon the principle of duty of care, which imposed a greater responsibility upon the manufacturers while producing goods, ultimately forming the basis for modern day Consumer Laws in both United Kingdom and India:

That is to say, that the manufacturer and as of today, even a service-provider would be liable when:

1. He owed a duty of care, i.e. he is expected to maintain a certain prescribed standard such that its failure could deem the product hazardous for consumption[11].

2. The duty of care is against all those who may be directly affected by such a product[12].

3. This Duty was breached[13].

4. Such breach caused a significant damage to the consumer[14].

The very essence of “negligence” with regards to its implications in the commercial sector was elaborated upon to devise a further independent concept of Product Liability which has been cleverly adopted by the Indian Consumer Law and ever since, has played a crucial role in reducing the burden upon the Civil Courts and has ensured fast-track justice[15]. Until 2019, all the instances of product liability were dealt either as a Defect in Good of Deficiency in Service under the COPRA – post 2019 amendment, Product Liability has been included as a separate chapter under the Act, which vide its Section 85[16], lists detailed instances wherein a service provider could be held liable for deficiency of services under Section 2(1)(g).

The concept of product liability ascertains instances when a manufacturer or a seller can be held responsible for delivering a defective product to the consumer – every product and in Indian context, services have to meet certain parameters, on failing which, they can be held liable under the Consumer Protection Act, 2019. And a thorough read of the aforesaid provisions together could help attain considerable clarity with regards to the extent of liability of the Religious Institutions.

Section 85 of Consumer Protection Act, 2019 & Liability of Religious Institutions as Service Providers:

Deficiency in services primarily occurs when there the expected and established manner of performance is not abided, provided the same holds the potential or tends to cause serious grievance to the consumer. Such a generalized understanding has a wide ambit and has been discerned through several landmark Judgments to that effect. A recurrent modus operandi in nearly every case involves the fulfillment of any of the 4 factors appears to be imperative, which have been duly incorporated under the newly added Section 85:

“85. Liability of product service provider:

“A product service provider shall be liable in a product liability action, if—

1. “(a) the service provided by him was faulty or imperfect or deficient or inadequate in quality, nature or manner of performance which is required to be provided by or under any law for the time being in force, or pursuant to any contract or otherwise”

i. One of the finest illustration to that effect is the Judgment rendered by the State Consumer Redressal Commission Chennai, whereby devotes, probably for the first time, were held to be consumers within the meaning of Section 2(1)(d). Particularly, the devotee had paid Rs. 5 for tonsuring his head as an offering to the Devanathaswamy Temple, such that Rs. 4/- went into the Barber’s pocket while the remainder was claimed by the Temple authorities. Thereafter, when the Devotee sought to wash himself up for seeking blessings of the revered deity, he realized that water taps so maintained by the Temple Trust were running dry.

Consequently, he could not take the darshana and sued the Temple under Consumer Protection Act, 1986 on account of deficiency of services[17] – upholding the miniscule Rs. 1/- as a consideration towards the Temple[18], both the District Consumer Forum, Cuddalore and subsequently, the State Redressal Commission cited the responsibility of the Trust to provide adequate, sufficient and efficient amenities to all the devotees. Likewise, in a case where the District Consumer Forum held that the payment of consideration amount of Rs. 10000/- for participating in the seva under the Nitya Kallyana Pathakam scheme for lifetime and the subsequent restriction imposed upon its duration by the Authorities was held to be against the principles of natural justice and as a deficiency of service was also upheld by the State Consumer Redressal Commission[19].

ii. In simple words, an implied contract existed between the Temple and the devotee owing to the consideration and the failure to provide expected amenities implied a breach on the part of the latter which also amounted to deficiency of services.

2. “(b) there was an act of omission or commission or negligence or conscious withholding any information which caused harm;”

i. With regards to the abovementioned case, the Temple Authorities appear to have been negligent in maintaining the water facilities but neither providing any information regarding the lack of water facilities- had it informed about the shortcoming before hand, the devotee might not have shaved his head or could have found alternative for the same and at the end, would have had the chance to take darshana successfully. Consequently, such omission on the part of the Trust ascertains a case for deficiency of services. Likewise, if the Temple Trust charges certain fee for providing Prasadum (Laddos, Vadas etc.)[20], such that at any point, it charges for its consumption[21], shall, imply a contractual relation between the two, such that any commission or omission which tends to affect the physical or mental well-being of its consumers shall impose a liability on it under COPRA, 2019.

3. “(c) the service provider did not issue adequate instructions or warnings to prevent any harm;” & “(d) the service did not conform to express warranty or the terms and conditions of the contract.”

i. With growing population, the number of devotees visiting the spiritual hubs of the country has grown exponentially and consequently, created burden upon both the Trusts and the Government for ensuring smooth pilgrimage for one and all. For the sake of curbing overcrowding and making more money, several revered places of worship such as Tirupati, Shirdi etc. provided for an express service, whereby they charge an additional fee is one is not willing to stand in long queues and is willing to take darshana quickly – additional passages are paved for the ones who avail this facility.

Consequently, if the devotee is unable to get the Darshana on account of mismanagement by the Temple authorities or if he faces any injury during that course of such visit after availing the said facility, then, he can rightly claim under the Consumer Protection Act on account of deficiency in services. Consequently, this provision imposes a responsibility upon the service providers, i.e. the Temple Trust to ensure safe pilgrimage for one and all, especially when they are charging a fee for the same.

Conclusion:

In a nutshell, it appears that in the Indian context, religious institutions too, are subject to the provisions of product liability under Section 85 in cases where they accept certain consideration amount for catering certain amenities – in the opinion of Author, irrespective of the nature of the institution, if at any stage, it is accepting certain consideration and causes some negligence in providing the product or a service, then, it shall be held liable within the requisite provisions of the Consumer Protection Act, 2019. And henceforth, it is high time that the jurisdiction of the Consumer Protection Law be rigorously extended to the arena of charitable institutions if it truly aims at protecting the rights of citizens and achieve the purpose of its enactment.

Endnotes

[1] As retrieved from: (https://quotefancy.com/quote/912854/Swami-Vivekananda-Service-to-man-is-service-to-god)

[2] Although one might argue that a person is getting

[3] Pratibha Pratisthan & Ors vs Manager, Canara Bank & Ors [Civil Appeal No. 3560 of 2008]

[4] Indian Medical Association V. V P Shantha [1995 SCC (6) 651]

[5] Rai Bahadur H.P. Banerjee V. Commissioner of Income Tax [1941 9 ITR 137 Patna]

[6] Indian Contract Act, 1872 and Consumer Protection Act, 2019 are to be read in pari materia with each other since the term “Consideration” so defined under latter has been borrowed from the former. Raees-Uz-Zama & Anr. V. NCT [ CRIMINAL APPEAL No. 166/2011], State of Madras V. Vaidyanathaiyer [1958 SCR 580]

[7] Maharshi Dayanand University V. Surjeet Kaur [CIVIL APPEAL NO. 6807 of 2008]

[8] Bangalore Water-Supply V. R. Rajappa & Others [1978 SCR (3) 207]

[9] Winterbottom v. Wright [10 M. & W., 109]

[10] [ [1932] UKHL 100]

[11] Asia Tea Company and Ors v On behalf of Commissioner, Civil Supplies and Consumer Protection Department, Consumer Association of India [I (2017)CPJ461(NC)]

[12] Supra 10

[13] Taj Mahal Hotel V. United India Insurance Company Ltd. & Ors.[ Arising out of S.L.P. (Civil) No. 11213 of 2018]
[14] K A Nagamani v Housing Commissioner Karnataka Housing Board [(2015) 16 SCC 587]

[15] V Kishan Rao v Nikhil Super Speciality Hospital [(2010) 5 SCC 513]

[16] Liability of product service provider.

[17] M.R. Venkatesh In temple, consumer is god – No bath water, trust fined for deficiency in service 15.02.2006. As retrieved from: (https://www.telegraphindia.com/india/in-temple-consumer-is-god-no-bath-water-trust-fined-for-deficiency-in-service/cid/818144)

[18] Hitendra Singh v. Maharaja of Darbhanga[ 2 (1928) 55 I.A. 197]

[19] Executive officer, Sri Bramaramba Mallikharjuna Devasthanam V. Devisetty Mallikharjuna Setty [F.A.No. 1110/2013]
[20] So made by a team employed by it

[21] Express News Service Laddu price hike takes Tirumala pilgrims by surprise The New Indian Express 22nd December 2017 02:03 AM. As retrieved from: (http://www.newindianexpress.com/states/andhra-pradesh/2017/dec/22/laddu-price-hike-takes-tirumala-pilgrims-by-surprise-1734039.html)

Author Details: Shrirang Ashtaputre ( ILS Law College, Pune)

The views of the author are personal only. (if any)