Manufacturers and service providers often give freebies to lure consumers. In case a consumer complaint is filed for any grievance regarding such freebie, the common defence is the complaint is not maintainable, as the Consumer Protection Act excludes from its purview free goods and services. This is not justified and a consumer complaint is maintainable, as ruled by the National Commission in several cases.
S N Sinha was travelling by Indian Airlines on a Patna-to-Ahmedabad flight. Dinner was served on the aircraft. While eating, Sinha suddenly experienced pain in his mouth, as some hard substance had pierced his gum. He had to insert his fingers in the mouth to pull out the object, a piece of sharp metallic wire. Sinha immediately requested the air hostess to make a note of the incident, but she refused to do so. He was also not allowed to contact the captain during the flight. Sinha prepared a written complaint, on which he obtained the captain's acknowledgement after landing.
Since Indian Airlines did not pay any heed, Sinha filed a consumer complaint, which ultimately reached the National Commission. The airline adopted the stand that the function of an airline is to transport passengers. The provision of meals or snacks is only an incidental service, given free of charge, for the comfort and convenience of passengers. Food was not supplied by the airlines but by caterers appointed by it, so the caterer alone would be liable.
Overruling these objections, it was held the cost of providing food would have gone into the computation of the fare structure. So, it cannot be said food was served free of charge. The provision of food is one amenity provided to passengers in return for payment of the fare for the journey and it forms an essential part of the service rendered for the consideration received in the form of the price charged for the ticket. Any defect in the food supplied must, therefore, be regarded as a deficiency in the service rendered. The caterer who had actually supplied the food can be regarded as an agent of the airline. Hence, in the event of any defect in the food supplied by the caterer, the principal viz. the airlines, would be liable.
In another case, Mulchand Agarwal had gone to Bombay Brazzerie restaurant and handed over his car for free valet parking, for which he was given a tag. Later, the car and the keys went missing. He filed a consumer complaint, seeking compensation. The restaurant's defence was that it was clearly written on the parking token that the management did not accept responsibility for any theft/damage/loss. Also, parking was a free service.
The restaurant also argued that a customer who parks his car may not necessarily consume food there and pay for that. A person may visit the restaurant for various reasons. Some customers come on foot and it cannot be said the cost of free parking is included in the cost of the food consumed by them.
The dispute ultimately reached the National Commission, which observed that deficiency in service has two aspects.
First, a claim for the amount of actual loss and second, damages for inconvenience, harassment and mental tension. This second aspect is what is termed the consumer factor or consumer component or consumer surplus. In Mulchand's case, he had given his car for safe parking till he consumed his food and paid the price. One factor which brought him to the restaurant was the offer of free but safe parking. When he found the car missing, he was certainly entitled to damages for mental tension, harassment and the inconvenience caused to him and his friends.
In another case, the dispute was regarding free air travel passes provided to frequent flyers completing certain miles of travel. The airlines claimed it was a free pass, so a consumer complaint would not be maintainable.
The National Commission held the airline was alluring travellers by extending such benefits. At the initial stage, charges had to be paid for travel.
The airline, being a commercial company, would certainly consider the cost it would have to bear for granting such facilities in future. It ruled that consideration need not necessarily mean payment in terms of money. A broad interpretation would include a consumer entitled to services in consideration of his having paid for and hired services earlier.
Hence, a complaint regarding the free passes would be maintainable. These judgements will help consumers redress their grievances regarding false promotional gimmicks and free add-on services.
The author is a consumer activist. Views expressed are his own.