DEFICIENCY IN

SERVICES
Service:Section 2(1 )(o) of the Consumer Protection Act provides that service means service of any
description which is made available to potential users and includes the provision of facilities in
connection with banking ,financing, insurance, transport, processing, supply of electrical or
other energy, board or loading or both, housing construction, entertainment, amusement or the
purveying of news or other information, but does not include the rendering of any service free of
charge or under a contract of personal service.
Service may be of any description and pertain to any sector if it satisfies the following criteria:

Service is made available to the potential users, i.e., service not only to the actual users
but also to those who are capable of using it.
It should not be free of charge, e.g., the medical service rendered free of charge in
Government hospital is not a service under the Act;
It should not be under a contract of personal service

The expression contract of personal service is not defined under the Act. In common parlance,
it means - a contract to render service in a private capacity to an individual. For example, where
a servant enters into an agreement with a master for employment, or where a landlord agrees to
supply water to his tenant, these are the contracts of personal service. The idea is that under a
personal service relationship, a person can discontinue the service at any time according to his
will; he need not approach Consumer Forum to complaint about deficiency in
Service.
There is a difference between contract of personal service and contract for personal service. In
case of contract of personal service, the service seeker can order or require what is to be done
and how it should be done. Like a master can tell his servant to bring goods from a particular
place. But in a contract for personal service, the service seeker can tell only what is to be done.
How the work will be done is at the wish of the performer.
It does not make a difference whether the service provider is a Government body or a Private
body. Thus even if a statutory corporation provides a deficient service, it can be made liable
under the Act.
Examples:
X applied for electricity connection for his flour mill to Rajasthan
State Electricity Board. The Board delayed in releasing the connection. It was held deficient in
performing service.

Some other sectors/professionals/services which are not specified in the definition of service but
which have been considered by the Consumer Forums as service sectors from time to time are
listed below:
Advocates, Airlines, Chartered Accountants, Courier, Chit Fund, Education, Gas
Cylinder/LPG, Medical services, Postal services, Railways, Investment related
Services and Telephone services.

Deficiency In Service:Section 2(1) (g) of the Consumer Protection Act provides that, deficiency means any fault,
imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which
is required to be maintained by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any
service.
Reading the above definition by breaking it into elements, we get

Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality,

Examples:
1. A boarded a train. The compartment in which he and his wife travelled was in a bad shape-fans
not working, shutters of windows were not working, rexin of the upper berth was badly torn and
there were rusty nails which caused some injuries to the wife of A. A made a complaint against
the railway department. It was held that the complaint constituted deficiency in service and the
compensation of Rs. 1500 was awarded to A - General Manager, South Eastern
Railway v. Anand Prasad Sinha I [1991] CPJ 10 (12) NC.
2. Dr. X treated Y under Allopathic system, though he himself was a Homoeopathic
practitioner. Later on Y allegated X for wrong treatment. The Commission held it as deficiency
in service Poonam Verma v. Ashwin Patel [1996] II CPJ 1 SC.
One interesting aspect is that deficiency in service should occur during the happening of
performance. Thus it is crucial to determine when the performance of a service commenced.
Example:
A contracted with B to supply, erect and commission cold rolling mill. A
supplied the mill, but failed to erect and commission the mill. B filed a suit alleging
deficiency of service on As failure to elect and commission the mill. The National
Commission observed that the deficiency must pertain to performance of service.

Since A never started erecting and commissioning the mill, the question of
performance did not arise. Thus the case is not that of deficiency of service.

Such quality and manner of performance of service should have been required to be
maintained by or under any law for the time being in force or undertaken to be performed
by a person in pursuance of a contract or otherwise.

Example:
A, the builder, promised under written agreement to provide a flat to B.
Subsequently he expressed his inability to give possession of the flat and entered
into a fresh agreement to pay Rs. 9, 51,000 to B in place of flat. A didnt even pay
this money. B sued A. The Commission held that since A had not even paid the
money as per subsequent contract, the rights of earlier contract can be involved by
B. And that there was a deficiency of service on the part of builders - Lata
Construction v. Dr. Rameshchandra

The deficiency must be in relation to a service - The words ....in relation to any
service in the definition signifies that the deficiency is always in terms of service. Thus if
the grievance pertains to a matter which does not fall in the definition of service, the
concept of deficiency would not apply.

Example:
A deposited Rs. 100 with B as application fee and executed bond for the purpose of drilling tube
well. B did not drill the tube well because it was not feasible. A alleged deficiency in service. It
was held that depositing Rs. 100 as application fee and executing a bond does not amount
to hiring of services, thus the deficiency of service cannot be complained of in the matter Mantilla v. Chairman District Rural Development Agency [1991]
Deficiency in service due to circumstances beyond control
In normal course, if the service is found deficient as per the above criteria, it is held deficient and
the compensation is awarded. However there may be abnormal circumstances beyond the control
of the person performing service. If such circumstances prevent a person from rendering service
of the desired quality, nature and the manner, such person should not be penalized for the same.
Example:
A undertook to supply water to B for irrigation of crops. Due to power
grid failure of the State, A could not get sufficient power to perform the service.
Here A cannot be held liable for deficiency in service.
However, negligence on the part of performer may not be excused under the cover of
circumstances beyond control.

Example:
A agreed to supply water to B for irrigation of crops. He failed to do so because of a power
breakdown due to burning of transformer. As a result crops damaged. B sued A for providing
deficient service. The National Commission held that it was duty of A to get the transformer
repaired immediately. Since he was negligent in doing so, he is liable for the deficiency in
service.

CASE STUDY:Mr Kutty had been employed in Saudi Arabia since 1990. In 1992, he took a re-entry
endorsement prior to coming on leave to India. He had to return back to work within two
months, ie, by September 23, 1992, on which day his visa was to expire according to the Hijara
Calendar.
Mr Kutty had booked himself on Air-Indias flight from Mumbai to Riyadh on 21-09-1992. He
was issued a confirmed ticket. Yet he was not provided a seat on that flight because his name did
not appear in Air-Indias list of passengers.
On explaining his plight and the consequence of not being able to reach Riyadh by 23-09-2003,
he was told that he would be put on board the flight departing on 23-09-2003. Mr Kutty made it a
point to reach four hours prior to departure of the flight. Yet Air-India refused to accept his ticket,
stating that he was a wait-listed passenger. He was not allowed to board the flight and no
alternate arrangements were made. His visa expired, and since he did not reach Riyadh, he could
not resume his job. Consequently he lost his job which he could have continued for another one
year and nine months.
Mr Kutty suffered a great shock and mental agony because of the way he was treated by AirIndia and the ensuing consequences, particularly becoming jobless. He fell unconscious in front
of the Air-India counter. He was even hospitalised for a week in Mumbai. He had to incur
expenses for travel from his home town from Kerala to Mumbai and back and also for stay in
Mumbai.
Complaining deficiency in service, Mr Kutty filed a complaint before the Kerala State
Commission. He claimed that he was entitled to a compensation of Rs 22,16,002 but was
limiting his claim to Rs 10 lakh to bring it within the jurisdiction of the State Commission. The
State Commission awarded him Rs 2,52,000 for loss of salary in Saudi Arabia (at Rs 12,000 per
month for one year and nine months), Rs 10,000 for the mental shock and agony and Rs 4,500
for expenses incurred. Thus totalling Rs 2,66,500.
Air-India objected to the complaint being filed before the Kerala State Commission claiming that
it did not have territorial jurisdiction to entertain the complaint, despite the fact that the tickets

were purchased in Kerala. This objection was over-ruled by the State Commission. In appeal, the
National Commission observed that it was unfortunate that Air India should have raised such a
technical objection to the jurisdiction of the State Commission when it has offices all over the
country and resources to defend the case against it.
Air-India admitted that Mr Kutty had a confirmed ticket. They claimed that their agent at
Coimbatore had booked the ticket through their Madras office since there was a computer failure
at Coimbatore. Another person of the same name Moideenkutty, who had booked though their
Calicut office was given a seat in the aircraft. Hence, there was a bona fide mistake due to failure
of the computer system.
The National Commission concurred with the State Commission that there was extreme
deficiency in Air-Indias service, which not only caused the complainant to lose his job but also
made him suffer a great deal of shock and mental agony and expense.
The National Commission observed that perhaps awarding of compensation for salary for the
remaining period of contract of service by the State Commission amounting to Rs 2,16,000
might not have been very correct but then the award of damages for mental tension and other
expenses incurred by the complainant as awarded by the State Commission were too meagre.
The National Commission observed that one must put himself in the place of the complainant to
understand his at that time.
Accordingly, the National Commission dismissed Air-Indias appeal and directed it to pay the
complainant costs of the appeal amounting to Rs 10,000.
Thus, when there is evidence to show that direct or proximate loss actually occurred due to
negligence and deficiency in service, the consumer forum will award appropriate compensation.