Law of Torts
TORT 080 Product Liability under the Consumer Protection Act 2019
Product Liability under the Consumer Protection Act, 2019: The Manufacturer, the Service Provider, the Seller, and the Exceptions
Chapter VI of the Consumer Protection Act, 2019, comprising sections 82 to 87, created India's first statutory product liability regime. Its central provision is the proviso to section 84(2): a product manufacturer is liable in a product liability action even if he proves that he was not negligent or fraudulent. That single sentence removes the obstacle which defeats most common law claims, and shifts the enquiry from the manufacturer's conduct to the product's condition. The chapter fixes liability on three classes of defendant and provides five exceptions.
The manufacturer, the service provider, the seller, the exceptions, and the three comparisons
1. Application and Definitions
Sections 2 and 82, Consumer Protection Act, 2019 Section 82: this Chapter shall apply to every claim for compensation under a product liability action by a complainant for any harm caused by a defective product manufactured by a product manufacturer or serviced by a product service provider or sold by a product seller. A "product liability action" means a complaint filed by a person before a District Commission or State Commission or National Commission, as the case may be, for claiming compensation for the harm caused to him. "Harm" in relation to a product liability includes damage to any property other than the product itself; personal injury, illness or death; mental agony or emotional distress attendant upon such injury, illness or death; and any loss of consortium or services or other loss resulting from such harm. It does not include any harm caused to a product itself, any damage to the property on account of breach of warranty conditions, or any commercial or economic loss, including any direct, incidental or consequential loss relating thereto. |
- Harm expressly excludes damage to the product itself, and excludes pure commercial or economic loss. Those remain matters for contract and for the ordinary law of torts.
- Harm expressly includes mental agony and loss of consortium, which is a significant extension over what a plaintiff would ordinarily recover for property damage.
- The forum is a consumer commission, at district, State or national level, and the advantages are the ones that attach to the consumer jurisdiction generally: no ad valorem court fee, a summary procedure, and a specialist forum.
2. The Product Manufacturer
Section 84, Consumer Protection Act, 2019 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. |
- The five grounds cover the common law categories and add two. Manufacturing defect, design defect and failure to warn correspond to the common law heads; deviation from specifications and non conformity with an express warranty are additional.
- The proviso is the heart of the chapter. Liability does not depend on fault, so the claimant proves the defect and the harm and not the manufacturer's carelessness.
- A design defect claim remains difficult in practice, because the claimant must still establish that the design was defective, which ordinarily requires expert evidence, even though he need not establish negligence in arriving at it.
3. The Product Service Provider
The ground under section 85 | What it covers |
Faulty, imperfect, deficient or inadequate service | In quality, nature or manner of performance, as required by or under any law for the time being in force, or pursuant to any contract or otherwise |
An act of omission or commission, or negligence | Or conscious withholding of any information which caused harm |
Failure to issue adequate instructions or warnings | To prevent any harm |
Non conformity with an express warranty or the terms of the contract | Where the service did not conform to what was promised |
- The service provider's liability is framed differently from the manufacturer's, and expressly includes negligence as a ground, which suggests that fault is relevant here in a way it is not under section 84.
- Conscious withholding of information is a distinct ground, and covers the service provider who knows of a risk and says nothing.
4. The Product Seller
The ground under section 86 | Why the seller answers |
Substantial control | He exercised substantial control over the designing, testing, manufacturing, packaging or labelling of the product that caused the harm |
Alteration or modification | He altered or modified the product, and that was a substantial factor in causing the harm |
His own express warranty | He made an express warranty of his own, independent of any made by the manufacturer, and the product failed to conform to it |
The manufacturer is not reachable | The product was sold by him and the identity of the product manufacturer is not known, or, if known, service of process cannot be effected on him, or he is not subject to Indian law, or a judgment against him cannot be enforced |
Want of reasonable care | He failed to exercise reasonable care in assembling, inspecting or maintaining the product, or failed to pass on the warnings or instructions he received from the manufacturer |
- The fourth ground is the practically important one. It means that a consumer is not left without a remedy where the manufacturer is abroad, unidentifiable or judgment proof, and it places the risk of dealing with such a manufacturer on the seller who chose to stock his goods.
- The seller is not liable merely because he sold the product. Each of the five grounds requires something more, which preserves the distinction between a seller who merely passes on a sealed article and one who has involved himself in it.
5. The Exceptions
Section 87, Consumer Protection Act, 2019 A product liability action cannot be brought against the product seller if, at the time of harm, the product was misused, altered or modified. In a product liability action based on failure to provide adequate warnings or instructions, the product manufacturer shall not be liable if the product was purchased by an employer for use at the workplace and the manufacturer had provided warnings or instructions to such employer. Nor shall he be liable if the product was sold as a component or material to be used in another product and necessary warnings or instructions were given by the product manufacturer to the purchaser of such component or material, but the harm was caused due to the use of the end product in which such component or material was used. Nor if the product was one which was legally meant to be used or dispensed only by or under the supervision of an expert or a class of experts and the manufacturer had employed reasonable means to give the warnings or instructions to such expert or class of experts. Nor if the complainant, while using such product, was under the influence of alcohol or any prescription drug which had not been prescribed by a medical practitioner. A product manufacturer shall not be liable for failure to instruct or warn about a danger which is obvious or commonly known to the user or consumer of such product, or which such user or consumer ought to have known, taking into account the characteristics of such product. |
6. The Three Comparisons
Product liability under the Act | The other route | |
Against negligence | No proof of fault is required. Section 84 fastens liability though the manufacturer proves he was not negligent | Negligence requires proof of a want of reasonable care, which the consumer usually cannot obtain |
Against breach of warranty | Runs to the consumer whether or not he bought the article, and covers harm and not merely the value of the goods | A warranty claim lies in contract, and privity confines it to the buyer. Sections 14 to 17 of the Sale of Goods Act, 1930 imply the conditions |
Against strict liability | Attaches to a defective product wherever the harm occurs, and is limited by the section 87 exceptions | Rylands attaches to the escape of a dangerous thing from land and has its own exceptions; M.C. Mehta attaches to a hazardous enterprise and has none |
⚠ What the statutory regime changed, and what it did not It is tempting to say that the 2019 Act made product liability strict, and that is right as to the manufacturer and imprecise as to everything else. What section 84 removes is the need to prove fault. What it does not remove is the need to prove a defect and to prove causation, and in a design defect case those are frequently the whole battle: the claimant must still establish, usually by expert evidence, that the design was defective and that the defect caused his harm. Section 85, dealing with service providers, expressly retains negligence as a ground, so liability there is not strict at all. And section 86 makes the seller liable only on defined grounds, none of which follows from the bare fact of selling. The practical effect of the chapter is therefore narrower than the phrase "strict product liability" suggests, and considerably wider than what the common law gave: a consumer who can show a defect and a harm has a route to compensation that does not require him to prove what happened inside the factory. |
7. The Position Stated Shortly
1. Chapter VI of the Consumer Protection Act, 2019, sections 82 to 87, created India's first statutory product liability regime.
2. Harm includes personal injury, illness, death, mental agony and loss of consortium, and expressly excludes damage to the product itself and pure commercial loss.
3. A product manufacturer is liable for a manufacturing defect, a design defect, a deviation from specifications, non conformity with an express warranty, or inadequate instructions or warnings.
4. He is liable even if he proves that he was not negligent or fraudulent, which is the central change the chapter made.
5. A product service provider is liable for faulty or deficient service, for negligence or conscious withholding of information, for inadequate warnings, and for non conformity with an express warranty.
6. A product seller is liable where he exercised substantial control, altered the product, gave his own warranty, failed to exercise reasonable care, or where the manufacturer is not identifiable or reachable.
7. The exceptions under section 87 cover misuse, alteration, warnings given to an employer, to the purchaser of a component, or to an expert, and use under the influence of alcohol or an unprescribed drug.
8. There is no duty to warn of a danger that is obvious or commonly known to the user.
9. The action differs from negligence in requiring no proof of fault, and from breach of warranty in requiring no privity.
10. The claimant must still prove the defect and causation, so a design defect claim remains difficult in practice.