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Kumon n telekom

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  • 1. 1. HaslindabteHamzah versus Kumon Method of Learning Centre 2. Telekom Malaysia Bhd versus Tribunal TuntutanPengguna & Anor
    NUR IDIENTEE BINTI ABD HALIM (806092)
    ATHIRAH MOHD TAN (806265)
    ROSLAN BIN RIDZUAN (806481)
  • 2. HaslindabteHamzahversusKumon Method of Learning Centre
    FACTS
    • HaslindabteHamzah is the appellant and Kumon Method of Learning Centre is the respondent.
    • 3. Court Of Appeal at Putrajaya. ( 2006 ).
    • 4. The respondent ran a tuition centre and the appellant enroll three children in it.
    • 5. Appellant found the service rendered by the respondent to be wanting and wanted a refund of the fee appellant had paid the respondent.
  • Con’t
    • She filed the claim with the Tribunal.
    • 6. The tribunal ordered the respondent to make a partial refund.
    • 7. The respondent applied to the High Court for judicial review to quash the tribunal’s decision.
    • 8. The judicial commissioner quashed the tribunal’s award on the ground that it had not given written reasons for its award in accordance with s 114 of Consumer Protection Act 1999.
    • 9. The appellant appealed.
    • 10. Now the appellant use the own name and Tribunal just for support their claims.
    • 11. Tribunal like the middleman to settle the appellant judge to respondent.
    • 12. All the rules and regulation taken action in this case to settle with order from the judge.
  • ISSUES
    In this case just have three issues.
    The issues is :
    • Whether award must be in writing.
    • 13. Whether tribunal could order partial refund.
    • 14. Whether awards should not be struck down save in the rarest of cases – Consumer Protection Act 1999 s 114.
  • ARGUMENT BY APPELLANT
    1. Whether award must be in writing.
    • The s 114 says is that the Tribunal must give reasons for making its award. The section does not say that the reasons must be in writing.
    2. Whether tribunal could order partial refund.
    • The tribunal is a specially constituted body to speedily deal with consumer’s complaints. Tribunal has the power to direct a refund, so there is no error of law at all here.
  • ARGUMENT BY RESPONDENT
    1. Whether award must be in writing.
    • The award must be in writing and appellant not has the writing award in this case.
    2. Whether tribunal could order partial refund.
    • The tribunal committed an error of law because it ordered a partial refund of the consideration paid by the appellant to the respondent when there was absent here a total failure of consideration.
  • JUDGE OPINION
    • Whether awards should not be struck down save in the rarest of cases – Consumer Protection Act 1999 s 114.
    • 15. Tribunal has been conferred with extraordinary powers to do speedy justice for customers. Its awards should not be struck down save in the rarest of cases. Where it has misinterpreted some provision of the Act in such a way to produce an injustice. Court should be ever remindful that certiorari is not a remedy that is available as of right. It is not every error of law committed by an inferior tribunal that entitles the High Court to issues certiorari.
    • 16. The High Courts do not, and should not, act as courts of appeal under art 226.
    • 17. The appellant win in this case because more their evidence and support by the Tribunal and Consumer Protection Act 1999.
    • 18. At the conclusion of the judgments on 6 February 2006, this appeal was allowed.
  • OPINION ABOUT THIS CASE
    • We agree with judge decision.
    • 19. In my opinion. This case just about the refund the tuition fees, not big or much amount. No need settle all this in court, just waste time and money.
    • 20. The Tribunal doing their task or function very well. Customer know where their can go if have the problems about the business transaction.
    • 21. Consumer protection act is very good and protect all the consumer. Customer always right.
  • Telekom Malaysia Bhdversus Tribunal TuntutanPengguna & Anor
    FACT
    • Telekom Malaysia Bhd is the applicant, Tribunal TuntutanPengguna is the first respondent and the second respondent is Tan Boon Kheng.
    • 22. High court in Melaka
    • 23. The applicant billed the second respondent for RM98 in relation to international calls said to be made by the second respondent to Papua New Guinea.
    • 24. second respondent disputes the bill because international call was generated by the internet service without his consent.
  • Con’t
    • The second respondent filed a claim with the first respondent and the tribunal (first respondent ) asks the applicant to refund the second respondent
    • 25. The applicant filed notice of motion for judicial review to nullify the decision made by the first respondent :
    • 26. The tribunal was the wrong forum to bring the dispute to.
    • 27. Consumer Protection in Telecommunication is to be found under Communication and Multimedia Act 1998 and not under Consumer Protection Act 1999.
  • ISSUES
    In this case just have two issues.
    The issues is :
    • Whether tribunal had jurisdiction to decide on consumer claims regarding service of telecommunications.
    • 28. Whether consumer claims tribunal had jurisdiction to decide on consumer claims regarding service of telecommunications.
  • ARGUMENT BY APPLICANT
    1. Whether tribunal had jurisdiction to decide on consumer claims regarding service of telecommunications
    • The applicant argues that the second respondent had elected the wrong forum to bring the dispute to the tribunal as it was outside the jurisdiction of the tribunal.
    2. Whether consumer claims tribunal had jurisdiction to decide on consumer claims regarding service of telecommunications
    • In these issues there are no arguments by appellant.
  • ARGUMENT BY RESPONDENT
    • There are no arguments of respondent for all of these issues
    • 29. because the judge ask first respondent to file written submission on or before 6 February 2006. However no such submission has been presented for the tribunal.
  • JUDGE OPINION
    First issue
    • The tribunal was established under s 85 of the Consumer Protection Act 1999 (‘the CPA 1999’), but the applicant involves electromagnetic waves to which the CPA 1999 has no application by virtue of s 2(2)(g) thereof, but comes within the provisions of the Communications and Multimedia Act 1998 (‘the CMA 1998’).
    • 30. The judge believes that the second respondent had elected the wrong forum to bring the dispute to the tribunal as it is outside the jurisdiction of the tribunal
    • 31. The second respondent has two choice which are suing in a civil court of law or alternatively lodge a complaint under s 188(1)(a) and (b) and s 190(1)(b) of the CMA 1998 for a resolution of the dispute and to get redress if any.
  • Second issue
    • s 2 of the CPA 1999- this Act shall apply in respect of all goods and services that are offered or supplied to one or more consumers in trade; but NOT to any trade transactions effected by electronic means unless otherwise prescribed by the Minister.
    • 32. The judge continued to stress that the  Section 6 of the CMA 1998 defines ‘communications’ as any communication, whether between persons and persons, things and things, or persons and things, in the form of sound, data, text, visual images, signals or any other form or any combination of those forms.
    • Consumer protection for telecommunication can be found in s 188(1)(a) and (b) and s 190(1)(b) of Communication and Multimedia Act 1998; thus reaffirming that the issue at hand falls under CMA 1998 instead of CPA 1999 as explained below:
    188(1) Any network facilities provider, network service provider,applications service provider or content applications service provider shall:       (a)   deal reasonably with consumers; and      (b)   adequately address consumer complaints.
    190(1) Consumer code prepared by a consumer forum or the Commission shall include model procedures for:  (b)   the handling of customer complaints and disputes including an            inexpensive arbitration process other than a court, and            procedures for the compensation of customers in case of a breach of a consumer code; and/or…
  • 33. OPINION
    • We agree with the judge’s decision to allow the applicant to file a notice of motion
    • 34. We believe that tribunal should not have made this jurisdictional error.
    • 35. Knowing that this case is not under the jurisdiction of the tribunal, the tribunal should have played their role of customer protection by providing insights and suggestions to consumers instead.
    • 36. We believe that it is of a better benefit that the tribunal apply from the minister to include the transactions affected by electronic in the CPA 1999; or the inclusion s 188(1)(a) and (b) and s 190(1)(b) of the CMA 1998 in its jurisdiction.