Tested, but not proven (CPA Series)

Precautions while relying on a laboratory test report in a consumer complaint

(This is the first article in our new CPA Series, where we dive deep into some of the nuanced positions in the Consumer Protection law of India. Every week, we come out with a new article. Please subscribe to keep track of the latest in BLC Insights!)

To be clear, most consumer complaints pertaining to defective goods do not need a laboratory test to prove the defect itself. A refrigerator that stops cooling within weeks of purchase, a phone whose screen goes blank, or a car that has to be taken back to the workshop again and again, are defects that the buyer, the service records and, where necessary, a mechanic can describe well enough. The position is different where the product looks fine and works as it should, and the complaint is about what it is made of, or whether it meets the standard it claims to meet.

Consider a few such cases: jewellery sold as 22 carat gold that is in fact of a lower purity; a helmet that carries a certification mark, but may not withstand the impact that the standard requires; packaged food that claims a certain protein content on its label, or claims to contain no added sugar; cement or steel bars sold as being of a particular grade; or roofing sheets that may not meet the chemical composition prescribed for them. In such instances, nothing appears patently wrong, and whether the product is defective can only be answered by measuring it against the standard, which is the work of a laboratory.

If you have bought a product of this kind, suspect that it is not what it was represented to be, and are thinking of getting it tested before filing a consumer complaint, this piece is for you. It is equally relevant for manufacturers and sellers who find a laboratory report annexed to a complaint against them.

Why testing matters under the Act

The Consumer Protection Act, 2019 (“Act”) defines a “defect”, in Section 2(10), as any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained under any law, or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever. The definition is wide. It allows a buyer to complain not only about goods that break down, but also about goods that fall short of a standard, whether that standard is prescribed by law, agreed in the contract, or simply claimed by the seller on the label or in an advertisement.

The same definition also explains why testing becomes necessary. A shortfall in quality, potency or purity, or a departure from a technical specification, usually cannot be seen. A buyer may genuinely believe that the gold is impure or that the steel is of a lower grade, but the burden of proving the defect rests on the person who alleges it, and belief is not proof. The Act recognises this, and lays down a specific procedure for such cases. Section 38(2) provides that where a complaint relates to any goods, the District Commission shall:

“(c) if the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, obtain a sample of the goods from the complainant, seal it and authenticate it in the manner as may be prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory to make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Commission within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by it;” [emphasis ours]

The provision places the testing squarely in the hands of the Commission. It is the Commission that obtains the sample from the complainant, seals and authenticates it, refers it to an appropriate laboratory, and directs what the laboratory is to examine. A test that a consumer arranges on his/her own, outside this process, is therefore no substitute for it, and, as the decisions below show, Commissions will not, and should not, treat such a test as proof of a defect.

In Gopal Aggarwal v. M/s Tata Motors (NCDRC, 2019), the Hon’ble National Commission held that the testing procedure under the corresponding provision of the 1986 Act cannot be bypassed as a mere technicality, and that “non-adherence to the procedure prescribed vitiates the findings”. It upheld the State Commission’s conclusion that no manufacturing defect had been made out, where the only expert reports came from persons engaged by the complainant without the consent of the opposite parties. In Mercedes-Benz India Private Limited v. Smt. Revathi Giri (NCDRC, 2023), the Hon’ble National Commission set aside an order directing the replacement of a car because no opinion of an authorised laboratory or authority was on record, holding that a finding of a manufacturing defect without it is “conjectural and based on surmise”.

In Mohinder Pal v. Kisan Pesticides & Anr. (NCDRC, 2016), the Hon’ble National Commission upheld the dismissal of a farmer’s complaint about pesticides, where the only evidence was an inspection of his field carried out without notice to the seller, and no test report of the pesticide was on record. In Pepsi India Holding Private Limited v. T.M. Senthil Kumar (SCDRC, 2011), the Hon’ble Tamil Nadu State Commission dismissed a complaint about a foreign object in a soft drink, noting that the bottle had not been sent to an approved laboratory, and that the bottle produced did not even match the one described in the bill.

As we have seen above, Section 38(2)(c) of the Act prescribes that the entire process of having the goods tested has to flow from the Commission itself, and there is no provision for accepting in evidence any report privately obtained by the “consumer” in question. Therefore, given that the Hon’ble National Commission gives no credence to testing done in violation of the prescribed procedure, we can safely conclude that a test report privately obtained and submitted at the time of filing the complaint will not, and should not, be considered by the Commission in adjudicating the dispute.

How the Commission’s process works

Section 38 provides the entire scheme of how testing works. Before the sample is sent, the Commission requires the complainant to deposit the testing fee, which it then remits to the laboratory. On receiving the laboratory’s report, the Commission forwards a copy to the opposite party. Either side may object in writing to the findings, or to the method of analysis or test that the laboratory adopted, and both are heard on the report and the objections before the Commission passes its order.

Which laboratories qualify

An “appropriate laboratory” is not confined to a government laboratory. Section 2(2) of the Act defines it to include a laboratory or organisation recognised by the Central Government, one recognised by a State Government (subject to guidelines issued by the Central Government), and one established under any law and maintained, financed or aided by either Government for testing goods. A privately owned laboratory that has been so recognised is, therefore, as competent to test a sample under the Act as one run by the government. Accreditation by the National Accreditation Board for Testing and Calibration Laboratories (NABL), which is granted to private and government laboratories alike, is a related but separate matter: it shows that a laboratory is competent to carry out a particular test, but does not, by itself, make it an appropriate laboratory under the Act.

When a test may not be needed

The procedure is not required in every case, since it applies only where the defect cannot be determined without analysis or test. Where the defect is evident from the facts themselves, Commissions have found it without a laboratory. In Hyundai Motor India Limited v. Shailendra Bhatnagar (SCI, 2022), the airbags of a car had failed to deploy in a collision that caused substantial damage to its front, and the consumer fora held the manufacturer liable on the nature of the collision and the photographs of the damaged vehicle; on appeal, the Hon’ble Supreme Court declined to interfere. Similarly, in M/s National Seeds Corporation Limited v. M. Madhusudhan Reddy & Anr. (SCI, 2012), where farmers had sown the entire stock of seed and no sample remained, the Hon’ble Supreme Court upheld findings based on the field reports of agricultural experts, and held that the procedure followed was not contrary to the testing provision of the 1986 Act.

As we have seen above, Section 38(2)(c) of the Act applies only where the complaint alleges “a defect in the goods which cannot be determined without proper analysis or test of the goods”. The exceptions above are therefore wholly dependent on their own facts, and cannot be treated as precedents of general application.

What a buyer should do

The first step is to give the seller and the manufacturer an opportunity to respond. If the product carries a warranty, invoke it in writing and allow an inspection. How each side conducts itself at this stage often weighs with the Commission later. In Maruti Udyog Limited v. Susheel Kumar Gabgotra & Anr. (SCI, 2006), the Hon’ble Supreme Court set aside a direction to replace a car, noting that the complainant had not brought the vehicle in when the manufacturer asked for it, and confined the relief to replacing the defective part, which was all that the warranty promised. Conversely, in the above-mentioned case of National Seeds, the seller’s failure to take samples for testing, though its officers had inspected the fields, was held to lend support to the farmers’ case. [We will discuss the role of the warranty in a separate article later in this series.]

The second step is to approach the Commission without delay, and to ask, in the complaint itself, that the goods be sent for testing under Section 38(2)(c). Time matters more for some goods than for others. Perishables such as food, beverages, seeds and medicines, and chemical-based products such as paints, adhesives, fertilisers and pesticides, can change in composition with time, heat, moisture or exposure to air. A sample that has expired or deteriorated by the time it reaches the laboratory may say very little about the product as it was sold. Until the Commission calls for the sample, keep the goods as they were bought: where possible, unopened units from the same batch, in their original packaging, with the invoice and the batch or lot number intact, and stored as the manufacturer directs, whether that means refrigeration or protection from heat and moisture.

Beyond this, the buyer’s role is to support the process. He/she provides the sample when the Commission directs, deposits the testing fee, and, if he/she disagrees with the laboratory’s findings or methods, files his/her objections in writing. The choice of laboratory, the sealing of the sample and the questions put to the laboratory are matters for the Commission.

Lastly, the person who bought the goods and suffered the loss should be the one who files the complaint, and the seller from whom the goods were bought should ordinarily be made a party along with the manufacturer. We will deal with both of these questions in the coming weeks.

Conclusion

Not every consumer dispute calls for a laboratory. Where the complaint is about the purity, composition or grade of a product, however, the Act places the test in the Commission’s hands, and for good reason. A sample drawn and sealed by the Commission, tested by an appropriate laboratory on its reference, and open to objection by both sides, leaves little room for dispute about what was tested and how. A report that a buyer obtains on his/her own, however reputable the laboratory, does not carry the same assurance, and Commissions have repeatedly declined to act on it. The buyer’s part in the process is a limited one: to raise the defect with the seller first, to approach the Commission promptly while the goods are still fit to be tested, to keep them as they were sold, and to ask for a reference under Section 38(2)(c). The rest of the process is for the Commission to conduct.

Next week: not every buyer is a “consumer”, and why the purpose of a purchase matters. Please subscribe to keep track of the latest in this CPA Series!

This update is for general information only and is not legal advice.

Feel free to reach out to us with your queries at legal@benevolentlawchambers.com