Law of Torts
Product Liability and Negligence: A Statutory Regime for Defective Products and the Common Law Behind It
The common law answer to the injured consumer is Donoghue v. Stevenson: a manufacturer owes a duty of care to the ultimate consumer, and the consumer recovers by proving that the manufacturer was careless. That is the difficulty, because the carelessness occurred inside a factory the consumer has never seen, in a process he does not understand, possibly years earlier. Chapter VI of the Consumer Protection Act, 2019 removes the difficulty by removing the question: a product manufacturer is liable for a defective product notwithstanding that he was not negligent or fraudulent in making the express warranty. The consumer proves the defect and the harm, not the fault.
1. The Comparison
Negligence | Statutory product liability | |
The source | Donoghue v. Stevenson and the common law | Chapter VI, sections 82 to 87, Consumer Protection Act, 2019 |
What must be proved | Duty, breach, causation, damage | A defective product, harm, and the causal link |
Fault | Essential | Not required. Liability attaches notwithstanding the absence of negligence |
Who may sue | Anyone to whom a duty is owed | A complainant as defined by the Act |
Who may be sued | The manufacturer, and anyone else whose carelessness contributed | The product manufacturer, the product service provider, and the product seller |
The forum | A civil court | The District, State or National Commission, by pecuniary jurisdiction |
Court fee | Ad valorem | A modest prescribed fee |
Speed | Years | Faster, the procedure being summary |
Limitation | The Schedule to the Limitation Act, 1963 | Two years from the cause of action, with power to condone delay |
Defences | The full range, including reasonable care | Only those in section 87 |
2. The Common Law Position
- Donoghue v. Stevenson, [1932] AC 562 established that a manufacturer of products which he sells in a form showing that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, owes a duty to the consumer to take reasonable care.
- Grant v. Australian Knitting Mills Ltd., [1936] AC 85 applied it in India's legal neighbourhood and confirmed that the principle is not confined to food or to sealed containers: underpants containing an excess of sulphite which caused dermatitis fell within it.
- The practical obstacle is proof. The consumer must show what the manufacturer did wrong, and the facts lie in the factory.
- Res ipsa loquitur assists in the clear cases, where the defect is of a kind that does not ordinarily occur without carelessness, and it is the reason many negligence claims succeed at all: TORT 127.
- The claim survives alongside the statute, and remains the route for a plaintiff outside the definition of a complainant, or where the two year period has expired and delay cannot be condoned.
- The subject is examined fully in TORT 079.
3. The Statutory Regime
Sections 83 and 84, Consumer Protection Act, 2019 Section 83: a product liability action may be brought by a complainant against a product manufacturer or a product service provider or a product seller, as the case may be, for any harm caused to him on account of a defective product. Section 84(1): 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. Section 84(2): 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 in section 84(1) cover the recognised categories of product defect: a manufacturing defect, a design defect, a deviation from specification, non conformity with an express warranty, and a failure to warn or instruct.
- Section 84(2) is the provision that matters most. It removes fault from the enquiry and is the whole reason the statutory route is preferred.
- Section 85 governs the product service provider, and section 86 the product seller, whose liability is narrower and arises where he exercised substantial control, altered the product, made an express warranty independent of the manufacturer, or where the manufacturer cannot be identified or served.
- The subject is examined fully in TORT 079 and TORT 098.
4. The Statutory Defences
The exception in section 87 | What it covers |
Misuse, alteration or modification | A product liability action cannot be brought against a product seller if, at the time of harm, the product was misused, altered or modified |
Warnings given to an employer | Where the product was purchased by an employer for use at the workplace and the manufacturer provided warnings or instructions to that employer |
Components supplied to another manufacturer | Where the product was sold as a component to be used in another product and instructions were given to that manufacturer |
Products requiring expert supervision | Where the product was legally meant to be used under the supervision of an expert and warnings were given to that expert |
The user under the influence | Where the complainant was under the influence of alcohol or a prescription drug not prescribed by a medical practitioner |
Obvious or commonly known dangers | A manufacturer is not liable for a failure to warn about a danger that is obvious or commonly known to the user, or which the user ought to have known taking into account the characteristics of the product |
- The list is closed. A defendant who cannot bring himself within section 87 has no answer on the merits, reasonable care having been removed by section 84(2).
- The exceptions are mostly about the chain of information, and identify situations in which the manufacturer discharged his duty by warning the right person: an employer, a component assembler, a supervising expert.
- The obvious danger exception is the everyday one, and prevents the Act from requiring a warning that a knife is sharp.
5. Which to Bring
The situation | The route |
A consumer injured by a defective consumer product | The statutory action. No fault need be proved and the forum is faster and cheaper |
A person who is not a consumer within the Act | Negligence. A bystander injured by an exploding product is outside the consumer definition |
A claim brought after two years, where delay cannot be condoned | Negligence, where the limitation article may be more favourable |
A claim for a very large sum | Consider the pecuniary jurisdiction under the 2021 Rules: District up to Rs 50 lakh and State up to Rs 2 crore, computed on the consideration paid |
Harm caused by a hazardous manufacturing process rather than the product | Absolute liability under M.C. Mehta, and the environmental statutes: TORT 115 |
A commercial buyer complaining of quality | The Sale of Goods Act, 1930, since a commercial purchaser may fall outside the consumer definition: TORT 154 |
6. Why the Statute Was Needed
- The negligence action places the burden where the evidence is not. The consumer must prove carelessness in a process he cannot observe, using documents he cannot obtain, against a defendant with every incentive to disclose nothing.
- The manufacturer alone can control the risk, designing the product, choosing the process, setting the quality controls and deciding what warnings to give.
- He can spread the cost. Product liability is an insurable and pricable cost of production, distributed across all units sold, whereas the injured consumer bears the whole of his loss alone.
- Strict liability creates the right incentive. A manufacturer who answers only for proved carelessness has an incentive to avoid creating records; one who answers for defects has an incentive to eliminate them.
- And the loss should lie with the enterprise that profits from the activity, which is the same reasoning that produced absolute liability for hazardous enterprise in M.C. Mehta: TORT 117.
⚠ Why the negligence action has not become obsolete The statutory regime is better than the common law action in almost every respect that matters to a consumer, and a practitioner should reach for it first. But it is a creature of a particular statute with a particular vocabulary, and everything in it depends on fitting within the defined terms. The claimant must be a complainant and the thing must be a product and the loss must be harm as the Act defines it, and there are real people injured by real defects who satisfy none of these. The bystander struck by an exploding cylinder bought by somebody else; the commercial purchaser who bought for resale and is therefore outside the consumer definition; the claimant whose loss is purely economic, the product having damaged only itself; the claimant who discovered the defect after the limitation period and cannot get the delay condoned. For each of these the statutory door is shut and Donoghue v. Stevenson is still standing behind it. That is the reason to plead both, and the reason the common law action is worth knowing properly rather than as background to the statute that has largely replaced it. |
7. The Position Stated Shortly
1. Negligence requires proof that the manufacturer was careless; the statutory product liability action requires proof of a defect and harm.
2. Donoghue v. Stevenson established the manufacturer's duty to the ultimate consumer, and Grant v. Australian Knitting Mills confirmed it is not confined to food or sealed containers.
3. Chapter VI of the Consumer Protection Act, 2019 contains sections 82 to 87 and governs product liability in India.
4. Section 84(1) sets out five grounds: a manufacturing defect, a design defect, a deviation from specification, non conformity with an express warranty, and a failure to warn or instruct.
5. Section 84(2) makes the manufacturer liable even if he proves he was not negligent or fraudulent in making the express warranty.
6. Sections 85 and 86 govern the product service provider and the product seller, the seller's liability being narrower.
7. Section 87 contains the closed list of exceptions, covering misuse or alteration, warnings given to an employer, a component manufacturer or a supervising expert, the user under the influence, and obvious dangers.
8. The statutory forum is faster, cheaper and does not require proof of fault, so it is the route of first choice.
9. Negligence remains necessary for a person outside the consumer definition, for a claim out of time, and for purely economic loss.
10. Both should be pleaded, since the statutory claim depends entirely on fitting within the Act's defined terms.