To sue or not sue: that is, often, the question any person in a lawsuit asks themselves. While Harvey Specter has provided the image that suing someone is as easy as a simple shove to the ground or maybe just spilling hot coffee on yourself can make you a millionaire. These legal myths often find their way at a lawyer’s doorstep, (who will charge you enough to make you feel that you have been sued) only to tell you that there are no grounds for the same. The following blog explains the nuances of consumer law that determine who can sue; who can be sued and how the legal logic works.

The Consumer Protection Act of 2019, like its name suggests, was created to protect, well, you, the consumer. The act outlines various aspects of who, when and how you can get your money back or be reimbursed for any damage caused to you by a product you purchased or any service you hired.  

However, in order to not bore you with extreme legal jargon and cases involving rice, grain and other sleep-inducing words, let's look at the case that made suing popular not only in the USA but across the world. Liebeck v Mcdonalds: an old lady picks up her everyday cup of coffee from a local Mcdonald's in Albuquerque, New Mexico and puts the cup of black coffee between her legs while trying to start her car. Just like most roads in Bombay, the road was uneven. Like every person who forgot the existence of a cup holder, the coffee spills on her, she sues Mcdonalds and after a trial, received millions in damages. Additionally, she had third-degree burns and was hospitalized for several weeks.

What would happen in India if old lady Liebeck chose to buy a Mcdonald's coffee and go over 40 on the rickety roads of Bombay spilling that coffee all over herself, resulting in life-threatening burns? What would be the position of the Indian law, that is, of course if the case is heard?

WHO CAN SUE?

Before understanding the process of how a consumer suit would work, we must ask who the consumer is.

A consumer is a person who quite literally consumes. They're someone who uses the product they bought. A consumer, as per the act, is not someone who uses something for commercial purposes (like resale).

• If Liebeck bought the coffee to drink (or, at least, hoped she would), she is a consumer. 
• If Liebeck buys the coffee only to repackage it as organic coffee from some corner of South America and sell it to others, she is not a consumer because she is making a profit from it.
• If Liebeck were to purchase that coffee for her boss, as part of her job, she is still a consumer, since the coffee will still be consumed.

The Supreme Court in Karnataka Power Transmission Corp. Ltd. vs Ashok Iron Works Pvt. Ltd. decided that even a company is a consumer since it uses electricity, water and other such products in its day-to-day use and, therefore, has the same rights as any other person.

WHO CAN BE SUED?

Before suing someone for money, it is important to be sure whether or not you can sue them. This brings us to the question of who is it that can be sued. The determination of who can be sued is based on the question of who is responsible and whether they had a duty of care.

A duty of care, as Lord Denning puts it, is the answer to the question when a person is drowning and you see them, are you legally obliged to help them? The answer to the question depends on your identity. A lifeguard, police officer or the person's guardian would be legally obliged to help them. You or me, however sadistic it may sound, don't have that obligation.

The duty is also determined, based on the idea of foreseeability. Is some kind of accident, damage or action foreseeable if I do or do not do something? Simply put, in the case of Klaus Mittlebachert v East India Hotels, a person dives into an Oberoi pool, unaware that it is not deep enough to dive. There is no sign saying the same and is paralyzed. Oberoi is responsible since it was obvious that someone may try to dive into a pool if there is no sign to the contrary.

Now let’s get back to our example. The big Mcdonald's corporation office at the Mcdonald's office, before releasing a product, like coffee, must ask themselves: what are the risks the coffee may pose? If it were not made properly, it may be harmful to the stomach or body, therefore they are duty-bound by FSSAI rules and normal coffee-making practices that the coffee should be safe for consumption. Therefore we can say that McDonald's should have made sure that the coffee was not so hot that it would have burned Liebeck’s tongue. However, Mcdonald's could not predict that Liebeck would drop the coffee on herself and is, therefore, not liable for her spilling the coffee.

Therefore, if this matter would reach the Consumer Dispute Redressal Commission of India, the first question the law would ask is: which duty has been unfulfilled? The duty breached here is that the coffee was not made fit for human consumption as it was hot enough to give third-degree burns. Therefore, the liability of negligence arose the moment the coffee was made and not when it was spilt.

The field of law is complex and spans over a hundred years. While smear campaigns by large companies make it seem like you can sue whoever you want for the smallest of things, it is a myth that will definitely fire back on you.

Liability was created as a way to protect the everyday person from being exploited by the crony capitalist industry and malicious retailers. This, however, does not mean that any accident arising out of the average person's fault can be attributed to the negligence of the retailer. These suits end up costing the plaintiff far more than the company itself.