Liability of the Product Service Provider under Section 85

A sound product can still kill through bad hands: the geyser installed without earthing, the car returned from service with the brake line loose, the lift maintained on paper alone. Section 85 makes the product service provider, anyone providing a service in respect of a product (Section 2(38)), answerable in a product liability action on four bases. This note explains who the section reaches, each basis, and how the section works beside the ordinary deficiency claim and the manufacturer's liability.

1. The Provision and Its Defendant

The defendant is the product service provider of Section 2(38): a person who provides any service in respect of a product, the installer, the authorised service centre, the repairer, the annual maintenance contractor, the tester and certifier. The definition needs a product at the centre: the pure adviser or professional whose work concerns no product stays outside, in ordinary deficiency law. The section is the chapter's bridge: harm from a badly serviced sound product would otherwise escape a regime built on defects in the product itself.

2. The Four Bases

2.1 Faulty, imperfect, deficient or inadequate service

The first basis borrows the vocabulary of deficiency (Section 2(11)) and gives it three yardsticks: the quality, nature or manner of performance required by or under law (the licensing conditions, the safety code, the installation standard), pursuant to contract (the service booklet, the AMC's schedule), or otherwise (the ordinary skill and workmanship the trade promises). The gas connection installed against the safety code, the servicing that skipped the brake inspection the manual mandates, fall here without more.

2.2 Act, omission, negligence or conscious withholding of information

The second basis is the conduct clause: any act of omission or commission or negligence, and, distinctively, the conscious withholding of information, which caused the harm. The workshop that found the cracked component and said nothing, the installer who knew the wiring could not carry the load and proceeded, answer for the silence as much as for the work. The clause makes the service provider's knowledge a source of duty: what he learns about the product in his hands, the consumer must be told.

2.3 Inadequate instructions or warnings

The third basis parallels the manufacturer's warning duty at the service stage: the provider must issue adequate instructions or warnings to prevent harm arising from his service, the do-not-use period after treatment, the settings not to touch, the retest due after a repair. Adequacy is judged by the ordinary consumer, and the obvious-danger limit of Section 87 tempers the duty here as it does the manufacturer's.

2.4 Non-conformity with warranty or contract

The fourth basis holds the provider to his express warranty and the contract's terms: the 'as good as new' promise on the overhaul, the guaranteed-for-a-year repair, the certified inspection. Where the service falls short of what was promised and harm follows, the promise itself is the measure, no separate negligence inquiry is needed.

3. Section 85 at Work

• Beside the deficiency claim: the same failed service can ground an ordinary deficiency complaint (for the service's price and the transaction's losses) and a Section 85 action (for the Section 2(22) harm, the injury, the burnt kitchen); the heads are pleaded separately and both survive.
• Beside the manufacturer: where the product was defective and the service bad, both are joined, Section 84 against the maker, Section 85 against the servicer, and causation apportions; where the product was sound, Section 85 stands alone, and the manufacturer is out.
• The proof: the service record, job card and invoice fix what was done and promised; the applicable code or manual fixes what was required; expert examination of the product after the event connects the failure to the service; and the harm is documented head by head.
• The defences: causation (the consumer's own intervening misuse, a later hand's work), the obvious-danger limit on warning claims, and the boundaries of harm, the serviced product's own further damage is a deficiency measure, not Chapter VI harm.

4. Related Topics and Provisions

• Product liability complete notes (Topic 52): the chapter end to end
• Liability of the manufacturer (Topic 55): the companion strict theory
• Deficiency in service (Topic 14): the ordinary route beside this one
• Product service provider defined (Topic 21): who stands under this section