Imagine you run a small kitchen-appliance brand out of Noida. You sell mid-range mixer-grinders through two big online platforms and a few hundred dealers. Last Tuesday a buyer in Indore filed a consumer complaint claiming your mixer threw out the jar, hit her wrist and fractured it. She is asking for one lakh sixty thousand rupees in compensation. The complaint is sitting on your table, your inbox is full of warning emails from your distributor, and your insurance company wants to know what your defence is going to be.
This article is for you - and also for any buyer reading this who wants to know what the company is going to argue back. The Consumer Protection Act, 2019 does not just create rights for buyers. Section 87 of the same Act gives manufacturers and sellers a clearly listed set of defences. Knowing them is half the case. Most product liability disputes turn not on whether the product was defective in some abstract sense, but on whether one of these six escape routes applies.
Why This Article Is Not Only For Lawyers
If you are a buyer who has just been told by the other side "see, we have a defence under Section 87", you need to understand exactly how narrow that defence is. Companies regularly bluff. They write fearsome reply notices that quote Section 87 like a hammer, when in reality the section applies only in very specific situations. Once you read this carefully you will see that the defences are not magic shields - they are precise, evidence-heavy, and often easy to break when the buyer's facts are clean.
If you are a manufacturer, seller or service provider on the receiving end of a complaint, this article tells you which defences are real and which are wishful thinking. It also tells you what evidence you need to keep on file from day one - because most of these defences fail in practice not because the law is against you, but because the company never preserved the documents that prove its defence.
The Architecture of Section 87
Section 87 of the CP Act is titled "Exceptions to product liability action." It has three sub-sections and they do different jobs.
Section 87(1): "A product liability action cannot be brought against the product seller if, at the time of harm, the product was misused, altered, or modified."
This first sub-section is the seller's exit. It applies only when the product was misused, altered or modified at the time of harm. Note the words carefully - at the time of harm. Not earlier, not in general, but at the moment the injury or damage happened.
Sub-section (2) lists four specific defences a manufacturer can use, but only in cases "based on the failure to provide adequate warnings or instructions." If the case is not about warnings - if it is about a manufacturing defect or a design defect - sub-section (2) does not apply at all.
Sub-section (3) is a general carve-out: a manufacturer is not liable for failing to warn about a danger which is obvious, commonly known, or which the user ought to have known taking into account the characteristics of the product. This is the so-called obvious risk defence.
So the architecture is: one seller defence, four manufacturer warning-defences, one general obvious-risk defence. Six total. Let us walk through each.
Defence 1: Misuse, Alteration or Modification
This is the most often-used defence and also the most often-misused. The Act says a product liability action against the seller cannot be brought if the product was misused, altered or modified at the time of harm. Three things to notice.
First, the defence is for the seller, not the manufacturer. A literal reading of Section 87(1) limits it to the product seller. However, in practice, manufacturers often raise misuse or alteration as a related argument under common-law defences and under the negligence test for service providers. So while sellers get an express statutory exit, manufacturers raising the same fact pattern still have to argue it as a contributory factor or as breaking the chain of causation.
Second, misuse means actual misuse, not theoretical misuse. The buyer must have done something the manual specifically prohibited, or which no reasonable person would do. Running a 1500-watt mixer continuously for fifteen minutes when the manual says "do not run for more than three minutes at a stretch" may qualify. Using a mixer to grind atta when the manual lists atta as an allowed use does not qualify, even if the company would prefer it did not.
Third, alteration or modification has to be substantial and linked to the harm. If the buyer replaced the cord with a thicker one and that played no role in the harm, the seller cannot escape on this ground. The alteration must be the cause - or a major contributing cause - of the harm.
For a manufacturer building this defence, the evidence you need is the manual itself, photographs of the product showing the alteration, and ideally an inspection report. For a buyer fighting back, the question to ask is: did I actually do anything beyond normal use? If not, the company's reliance on this defence will collapse.
Defence 2: Workplace Products and Warnings Given to the Employer
Section 87(2)(a) says a manufacturer is not liable for failure to warn if "the product was purchased by an employer for use at the workplace and the product manufacturer had provided warnings or instructions to such employer."
The logic is straightforward. If a factory buys industrial machinery and the manufacturer trains the safety officer and supplies the manual to the company, the manufacturer cannot be held liable when an individual worker is hurt because the employer failed to pass on the warnings. That is then a labour-safety problem between the worker and the employer, not a product liability problem.
Three conditions are needed. The product was bought by an employer. It was bought for use at the workplace. And the manufacturer gave warnings or instructions to the employer. All three must be proved by the manufacturer. Just being a B2B sale is not enough; the warnings have to actually exist in writing.
For a worker injured by such a product, this defence cuts off direct product liability against the maker - but it does not cut off liability against the employer under labour and workplace safety laws. Different forum, different cause of action, often a stronger remedy.
Defence 3: The Component Supplier Defence
Section 87(2)(b) protects component suppliers. The provision says a manufacturer is not liable for failure to warn if "the product was sold as a component or material to be used in another product and necessary warnings or instructions were given by the product manufacturer to the purchaser of such component or material, but the harm was caused to the complainant by use of the end product in which such component or material was used."
Translated: a company that supplies, say, brake pads to a car manufacturer, with proper specifications and warnings, cannot be sued directly by a car-accident victim if the car-maker integrated those pads into a defective brake system. The component supplier handed off the responsibility to the next maker in the chain when it gave its warnings.
This defence matters most in B2B chains - automotive parts, electronic components, raw materials, chemicals. The key evidence is the original supply contract, the spec sheets, the warning labels and the inspection reports. Without those documents the defence is essentially unprovable.
For a buyer who has been injured by a finished product, this defence does not hurt your case against the final manufacturer. The car company that bought the brake pads is still on the hook to you. Section 87(2)(b) only protects the upstream component supplier.
Defence 4: Products Meant Only for Experts
Section 87(2)(c) says the manufacturer is not liable for failure to warn if "the product was one which was legally meant to be used or dispensed only by or under the supervision of an expert or a class of experts and the product manufacturer had employed reasonable means to give the warnings or instructions for usage of such product to such expert or class of experts."
The classic example is prescription medicine. A pharmaceutical company writes the warning on the package insert addressed to doctors and pharmacists. If a doctor ignores the contraindications and prescribes the drug wrongly, the patient's quarrel is with the doctor, not the drug company - provided the company actually communicated the warning in the standard medical literature.
This defence also covers heavy machinery, regulated chemicals, professional dental and surgical instruments, and other goods which the law itself says can only be used by trained professionals. For the manufacturer, the evidence is the product license, the regulatory category, the package insert or product literature, and proof of distribution to the expert class. For an injured patient or end-user, the right route is medical negligence against the professional, not product liability against the maker - unless the warnings to the experts were themselves inadequate, which is a separate, harder case.
Defence 5: User Under Alcohol or a Non-Prescribed Drug
Section 87(2)(d) protects the manufacturer where "the complainant, while using such product, was under the influence of alcohol or any prescription drug which had not been prescribed by a medical practitioner."
This is the law saying that a manufacturer is not in the business of designing products to be safe for intoxicated users or for users self-medicating with somebody else's prescription. If a person riding a two-wheeler while drunk crashes and then claims the bike's brakes were defective, this clause comes into play.
The defence requires actual proof of intoxication at the time of harm - typically a hospital record, a police record or a medical certificate. A bare allegation by the manufacturer that "the buyer was probably drunk" does not work. Companies often raise this defence loosely; injured buyers should not be intimidated by it unless there is hard medical evidence on the file.
Defence 6: The Obvious Risk Carve-Out
Section 87(3) reads: "A product manufacturer shall not be liable for failure to instruct or warn about a danger which is obvious or commonly known to the user or consumer of such product or which such user or consumer, ought to have known, taking into account the characteristics of such product."
This is the broadest and the most argued-over of the defences. The principle: a manufacturer does not have to warn you that a knife is sharp, that fire is hot, or that a hammer can hit your thumb. Things which are obvious from the basic nature of the product do not need warning labels.
But the line is thinner than it sounds. A pressure cooker is obviously hot - but is it obvious that the lid can fly off if the gasket is the wrong size? A toy is obviously small - but is it obvious that a particular paint coating contains lead? In practice the defence works for blatantly obvious risks (a kitchen knife will cut you if you grip the blade) and fails for risks that need specialised knowledge to understand. Courts ask: what would the average buyer of this product, reading the package and the manual, reasonably know?
For a buyer pushing back: never accept the company's claim that a risk was "obvious" at face value. Ask what was actually written on the box and the manual. If the danger needed engineering knowledge or chemical knowledge to anticipate, it was not obvious.
What Section 87 Does NOT Do
Section 87 is often quoted by company lawyers as if it is a general all-purpose exit. It is not. There are at least four things Section 87 does not do.
- It does not protect against manufacturing defects. Sub-section (2) is limited to cases based on failure to provide adequate warnings or instructions. If the case is about a factory-line defect or a design defect, none of the four sub-section (2) defences apply.
- It does not protect against deviation from express warranty. If the brochure said one thing and the product delivered another, no Section 87 defence is available.
- It does not protect against post-sale negligence. If the company learns the product is dangerous after launch and does nothing, that is a separate question of duty to warn - and the obvious risk defence does not cover it.
- It does not bar the buyer from suing other defendants. Even if a manufacturer escapes under Section 87(2), the seller and service provider may still be liable under Sections 85 and 86. The buyer should always array all three in the original complaint - see the companion article on who pays for a defective product.
That last point is critical. A clever buyer's strategy is to sue everyone at the start, force each defendant to raise their own defences, and let the forum sort it out. A clever manufacturer's strategy is to identify the exact factual claim being made (defect or warning failure), and then build evidence for the right defence under Section 87.
What Should I Actually Do Now?
The action checklist below covers both sides - the accused company and the buyer who wants to know what to expect.
- If you are the company - read the complaint twice. Identify whether the buyer is alleging a manufacturing defect, a design defect, a warranty breach, or a warning failure. Section 87 defences apply differently to each.
- Preserve every document of the supply chain. Original quality control reports, batch records, design files, package inserts, training records for B2B clients, distribution records to expert classes - these are the bedrock of every defence.
- Get a defendant's inspection done. If the product is still available, hire an independent expert to inspect it. Companies routinely lose cases not because the law was against them but because they accepted the buyer's version of the defect without an independent check.
- Reply to the legal notice on time. Most notices give 15 to 30 days. A timely, well-drafted reply that raises the right Section 87 defence early often discourages the buyer from filing at all. For the standard structure, see our guide to replying to consumer legal notices.
- If you are the buyer - do not panic at scary language. When the company's reply says "the buyer has no case under Section 87," ask: which sub-section? Misuse? Alteration? Obvious risk? Each one has narrow conditions. Most replies copy-paste defences that do not even apply to the facts.
- Pin the case to the actual cause of harm. If the harm was caused by a manufacturing defect, say so clearly in your complaint, because that takes the case out of the Section 87(2) warning-defence zone.
- Keep the product preserved. Whether you are the buyer or the company, the actual product is your strongest evidence. Never let it be repaired, replaced or destroyed during the dispute.
- Get a lawyer involved before the first response. Section 87 defences are technical. A wrong concession in the first reply notice can sink an otherwise strong case. The same is true for buyers - a wrongly drafted complaint that lets the company use a defence it should not have had access to.
A Word of Balance Before the Fight
Section 87 exists for a reason. The CP Act is not designed to convert every product mishap into a manufacturer's bill. The law recognises that buyers also misuse products, that experts have their own duties, that some risks are obvious, and that supply chains have multiple players each responsible for their own slice of the design. The defences in Section 87 reflect these realities.
But the defences are precise. They are not the open-ended "the buyer was at fault" shield that company replies often pretend they are. Each defence has narrow conditions. Each requires the manufacturer to bring specific evidence. Each is open to factual rebuttal by a buyer who knows what to look for.
If you are a manufacturer or seller facing a real product liability claim, the right thing to do is identify the strongest defence early, gather the documents that support it, and respond seriously - not with bluster. If you are a buyer being told the company has an unbeatable Section 87 defence, ask exactly which sub-section, and demand the evidence. Most company defences crumble at that stage. For complex matters, a quick consultation with a consumer-law team like Pinaka Legal can save weeks of misdirected fighting on either side.
Defences Are Real, But Narrow
The honest summary of Section 87 is this: yes, there are escape routes for makers and sellers, but they are not wide highways. They are narrow gates, each with a lock that opens only when the precise key - the right facts, the right evidence, the right sub-section - is presented. A manufacturer who walks into a forum prepared can win on these defences. A manufacturer who quotes Section 87 without doing the homework loses.
Read this article alongside the companion piece on who pays for a defective product. Together they give you both sides of the product liability fight - the buyer's case under Sections 84-86 and the seller-manufacturer's defences under Section 87. Whichever side of the dispute you are on, you walk in with the full picture.
Frequently Asked Questions
Does Section 87 of the CP Act protect the manufacturer from every product liability case?
No. Section 87 provides only specific defences, and most of them apply only in cases about inadequate warnings or instructions, not about manufacturing or design defects. Sub-section (1) is a seller-only defence for misuse, alteration and modification. Sub-section (2) lists four narrow manufacturer defences tied to warning failures. Sub-section (3) is the obvious-risk carve-out. So if the buyer's case is squarely on a manufacturing defect or an express warranty breach, most of Section 87 does not even open.
What does misuse of a product mean in legal terms?
It means actual use of the product in a way clearly outside its intended purpose, normally something the manual specifically prohibits or no reasonable buyer would attempt. Casual deviation from instructions is not misuse. Using a domestic mixer continuously for thirty minutes when the manual limits it to three minutes per cycle may qualify. Buying a stool and standing on it to change a bulb, when the box does not prohibit that, does not qualify. The defence is narrow and the company has to prove the misuse with evidence.
Can a manufacturer escape liability by saying the danger was obvious?
Only if the danger was genuinely obvious to an average buyer. Section 87(3) protects manufacturers from having to warn about commonly known risks - a knife is sharp, fire is hot, a hammer can hurt your hand. It does not protect against hidden risks that need specialised engineering or chemical knowledge to anticipate. Courts ask what a reasonable buyer reading the box and the manual would understand. A risk that was obvious only because the company itself buried the warning is not an obvious risk in law.
If a worker is injured by a machine the employer bought, can the manufacturer still be held liable?
Often no, under Section 87(2)(a), provided the manufacturer gave the warnings and instructions directly to the employer. The law treats the employer as the next link in the safety chain. If the employer failed to train its workers or pass on the warnings, the worker's remedy lies in workplace and labour safety law against the employer, not in product liability against the manufacturer. But the defence works only if the manufacturer can produce the original training material, manuals and proof of delivery to the employer.
My buyer has alleged a defect but also clearly altered the product. What happens to my liability as a seller?
If the alteration was at the time of harm and was a substantial factor causing the harm, Section 87(1) gives you a strong defence as a seller. The Act says a product liability action cannot be brought against the product seller if the product was misused, altered or modified at the time of harm. You will need photographs of the altered product, an inspection report linking the alteration to the harm, and ideally the manual that the alteration violated. Without these documents the defence is hard to land.
Does the obvious-risk defence apply to children's products?
Very rarely, and only with extreme caution. Children's products are judged on a higher standard. A risk that may be obvious to an adult buyer is not necessarily obvious in the context of how a child will use the product. Courts often expect manufacturers of children's products to warn even about risks adults might dismiss as common sense. So a toy manufacturer cannot easily say small parts presenting a choking risk are obvious - they must label, warn and design for the actual user.
If I am sued for a defective component I supplied to another manufacturer, what defence do I have?
Section 87(2)(b) is your defence. The CP Act says a manufacturer is not liable for failure to warn if the product was sold as a component to be used in another product, the necessary warnings and instructions were given to the purchaser of the component, and the harm was caused by use of the end product. You will need the original supply contract, the spec sheet, the warning labels and the QC records. The harm has to be linked to the end product, not to your component standing alone.
Can a manufacturer use Section 87 if the buyer was drunk at the time of the accident?
Yes, under Section 87(2)(d), but only with proof. The defence applies where the buyer was under the influence of alcohol or a prescription drug not prescribed to the buyer by a medical practitioner. The company has to produce hard evidence - hospital toxicology reports, police records, medical certificates. A bare allegation of intoxication is not enough. And the defence only goes to warning-failure cases under Section 87(2), not to claims based on a manufacturing defect.
Is there a time limit within which the manufacturer must raise Section 87 defences?
The defences must be raised in the written reply or version filed in response to the consumer complaint, within the time the forum gives - usually thirty days. Defences raised for the first time at the stage of final arguments are often disallowed as it deprives the buyer of a chance to lead evidence on them. So a careful company files a full reply at the earliest stage, pleads all relevant Section 87 defences clearly, and produces supporting documents along with the reply.
Does Section 87 help against a claim that the express warranty was breached?
No. None of the Section 87 defences apply to a case where the buyer is saying the manufacturer's own express warranty - a printed promise on the box, in the manual or in a brochure - was not met. The CP Act is strict about written warranties. Section 84(2) makes the manufacturer liable for warranty breach even without negligence or fraud, and Section 87 does not list a warranty exception. So if the case is squarely on express warranty, the company's only realistic options are to dispute the facts or settle.
Can Section 87 be used in a case under the online platform's seller rules?
Partially. Section 87(1) - the seller's misuse-alteration defence - applies to any seller, including an inventory or marketplace e-commerce seller. The four manufacturer defences in Section 87(2) apply only to manufacturers. So an online seller that did not make the product can lean on Section 87(1) and on the marketplace-specific exemptions under the Consumer Protection (E-Commerce) Rules, 2020. But where the platform exercised substantial control over labelling or descriptions, the seller defences become much weaker under Section 85.
Is it better to settle a product liability claim before testing Section 87 defences in the forum?
It depends on the strength of your evidence. If your defence is documented - manual, warnings, inspection reports, QC records - litigating to a final order may be worth it, especially in a precedent-setting situation. If your evidence is patchy and the harm is genuine, an early commercial settlement is usually wiser. Forums are sympathetic to consumers and a half-baked defence can attract not just compensation but also punitive costs. A good consumer-law lawyer can call this within a couple of meetings.
For more articles on Indian law, visit the Pinaka Legal Blog.