Prepared by:Farah Amalina bt Ab Ghani 2011846642Afifah Shariha bt Mohd Supi 2011873464Nurul Farah Amira bt Rusni 2011884368
Questions: David purchased a wedding package (inclusive of clothes and photographs) worth RM3,500 from Syarikat Cinta Sejati. However, he was dissatisfies with the services rendered particularly with the quality of the photographs taken. He had specifically instructed Syarikat Cinta Sejati to use its expertise to ensure that his fiancée, Anna, who is dark skinned, to appear fairer in the photographs. However, when the photographs were produced, Anna appeared darker than her usual self. David was also dissatisfied with the clothes that he had rented from Syarikat Cinta Sejati as they appeared no to have been washed. To make matters worse, some of the clothes were torn and faded. Consequently, David who is allergic to unwashed clothes suffered from rashes and other skin related problems all over his body. David wants to seek compensation form Syarikat Cinta Sejati.
Advise David on:(a) The most appropriate method for him to choose other than litigation. Cite reasons for the chosen method.
The most appropriate method for David to choose other than litigation is through a statutory body called the Tribunal for Consumer Claims. This statutory body is established to support the application of ADRs in Malaysia. The tribunal is set up to assist the disputing parties to negotiate for an agreed settlement which the tribunals will hold a hearing to determine the dispute.The first reason David’s claim should be brought to the Tribunal for Consumer Claims is on the ground that David has suffered loss for the cost of wedding package worth RM3,500. According to Section 98(1) of the Consumer Protection Act 1999, the tribunal shall have jurisdiction where the total amount in respect of the award does not exceed RM25,000. Thus, it is appropriate if David seek compensation for his loss under the Tribunal for Consumer Claims because his claim is less than RM25,000.
Secondly, the Tribunal for Consumer Claims is also a specialised court to determine disputes between consumers and traders. The Tribunal for Consumer Claims is an independent body with the primary function of hearing and determining claims lodged by consumers under the Consumer Protection Act 1999 subject to the provisions of the Act. Therefore, David can make his claim to the Tribunal for Consumer Claims because it provides jurisdiction specifically applicable over claims brought by consumers.Thirdly, the Tribunal for Consumer Claims offers a simple, inexpensive and speedy manner dispute for all claims. It is as an alternative channel, apart from courts, for a consumer to file a claim for any loss suffered in respect of any goods or services purchased even though every state has Small Claim Courts which provides hearing for claims involving amounts of RM5000 and below.
Fourthly, the Tribunal for Consumer Claims would provide for a more flexible hearing. This is because it is less demanding and more approachable method rather than the complicated procedures of litigation process in court. This is one of the reasons why consumers with small amount of claims like David should choose Tribunal for Consumer Claims to hear and determine their disputes.Thus, the Tribunal for Consumer Claims will be the most appropriate method other than litigation for David to seek compensation from Syarikat Cinta Sejati.
(b) The procedure for the chosen method, from its initiation until its completion. The most appropriate method for David to claim the damages suffered are by claiming under Tribunal for Consumer Claim. Tribunal for Consumer Claim is governed under Consumer Protection Act 1999 (CPA 1999). In doing so, he must comply with the laid down procedures of the tribunal.
Firstly, David must have cause of action to make claims. In this problem, David purchased a wedding package worth RM3,500 whereby both clothes and photographs are included. He had also specifically instructed Syarikat Cinta Sejati to use its expertise to ensure that his fiancee, Anna, who is dark skinned, to appear fairer in the photographs. However, the photographs he received were not complied with his instruction because Anna appeared darker than her usual self. Syarikat Cinta Sejati also failed to practice reasonable care and skill which caused the clothes appeared not to have been washed. Plus, some of the clothes were torn and faded.
In application, David has cause of action to make claims against Syarikat Cinta Sejati due to the fact that he has purchased a wedding package worth RM3,500 whereby both clothes and photographs are included. Thus, David has cause of action to make claims against Syarikat Cinta Sejati. Therefore, he is entitled to bring the matter to the tribunal. On top of that, in order for a consumer to make a claim against a trader to the Tribunal for Consumer Claims, the consumer must ensure that his claims does not exceed RM25,000. This is by virtue of Section 98(1) of the CPA 1999 where it states that the tribunal shall have jurisdiction where the total amount in respect of the award does not exceed RM25,000. In this question, David has suffered loss for a wedding package including clothes and photographs worth RM3,500. Therefore, David has the rights to bring up his claims to the tribunal because it is less than RM25,000.
Besides that, after filing Form 1, a consumer needs toserve the claim to the trader. In this case, David needs toserve the claim to Syarikat Cinta Sejati. In the notice ofclaim and hearing where upon the claim being lodge, theSecretary of the Tribunal shall give notice of the details ofthe day, time and place of hearing in the prescribed formto the claimant and the respondent as provided in Section106 of CPA 1999.
After that, it will proceed with negotiation for settlement.According to Section 107(1) of CPA 1999, the tribunal shallassess whether it is appropriate in all circumstances for thetribunal to assist parties to negotiate an agreed settlement inrelation to the claim. In making the assessment, the tribunalshall have regard to any factors that are likely to impair theability of either or both parties to negotiate an agreed settlementby virtue of Section 107(2) of CPA 1999.In this stage, the trader can contact the consumer to discuss theclaim for purpose of explaining the dispute or to discuss on howto settle it. If the parties reach an agreed settlement, the tribunalshall approve and record the settlement and the settlementshall take effect as it is an award of the tribunal as provided inSection 107(3) of CPA 1999.
However, if it appears to the tribunal that it would notbe appropriate for it to assist the parties to negotiatean agreed settlement or where the parties areunable to reach an agreed settlement in relation tothe claim, the tribunal shall proceed to determinedispute as stated in Section 107(4) of CPA 1999.In this situation, the trader (Syarikat Cinta Sejati)should file Form 2 to the tribunal. Form 2 shouldstate their defence or explanation to the claim.
Prior to the hearing, the parties must prepare for therelevant documents regarding the claims and getready any witness for the hearing.During the hearing, any party can bring along familymembers, friends, and etc to assist the party at thehearing. However, no lawyers are allowed torepresent parties at the hearing. According toSection 109 of CPA 1999, the proceeding is open tothe public.
In order to get evidence, the tribunal can issue a summonsand served it and enforced it as if it were a summons issuedby a subordinate court.On the other hand, according to Section 16Z of CPA 1999,before the tribunal makes an award under Section 112, itmay in its discretion refer to the High Court a question of lawwhich arose in the course of proceedings. The tribunal maydo so if that matter may raise sufficient merit or doubt to thecase. If the Tribunal refers any question of law to the judgeof High Court, it shall make award in conformity with suchdecision. In that situation, a Federal Counsel authorized bythe Attorney-General may appear on behalf of the Tribunalin proceedings before the High Court.
If the claim is settled with the consent of both parties, according to section 112, the tribunal shall make its award without delay and where practicable within 60 days from the first hearing before the tribunal commences. An award of the tribunal may contain one or more of the following:a) That a party to the proceeding pay money to any other party;b) That the goods be supplied or resupplied in accordance with this Act or the contract to which the consumer is a party;c) The goods supplied or resupplied to the consumer be replaced or repaired;d) That the price or other consideration paid by the consumer or any other person be refunded to the consumer or that person;e) That a party comply with the guarantee;
a) That money be awarded to compensate for any loses or damage suffered by the claimant;b) That the contract be varied or set asidec) That costs to or against any party be paidd) That interest be paid on any sum or monetary award at rate not exceeding eight percent per annum, unless it has otherwise be agreed between the parties.e) That the claim is dismissed. Nothing in paragraph (1) (j) shall be deemed to empower tribunal to award any damages for any pecuniary loss or damage.
In this case, if David manages to win his claims, thetribunal may give any of the above awards to him. For thisproblem, the most probable award is under Section 112(c),(d), (e) and (f).In giving award, the Tribunal shall give its reasons for itsdecision in the proceeding. It is stated under Section 114 ofCPA 1999. If there is agreed settlement between Davidand Syarikat Cinta Sejati, the Tribunal shall make writtenrecord of terms of the agreed settlement reached by themalso every award made by it under Section 112 of CPA1999.
According to Section 116 of CPA 1999, every agreedsettlement may be recorded by the Tribunal andevery award made by the Tribunal shall be final andbinding on all parties to the proceeding. It is deem tobe an order from the Magistrate Court and can beenforced accordingly by any party to the proceeding.Next, the secretary of tribunal shall send a copy ofthe award made by the Tribunal to the MagistrateCourt and it will be recorded.
After the award is given, David and Syarikat Cinta Sejatineed to comply with the award. The failure to do so within14 days may result to criminal penalty by virtue ofSection 117 of CPA 1999. In such event, the offendermay be convicted to a fine not exceeding RM 5,000 orimprisonment for a term not exceeding two years or both.In the case of continuing an offence, the offender will beliable to a fine not exceeding RM 1,000 for each day or apart of a day which offence continues after conviction.
The Tribunal shall adopt such procedure as it thinksfit and proper. In applying the above provision, ifDavid and Syarikat Cinta Sejati were failed to complywith the award made by the tribunal, they could beconvicted to a fine not exceeding RM5,000 orimprisonment not exceeding two years or both. If anyof them continuously fails to comply with the award,they would be liable to a fine not exceeding RM1,000 for each day or a part of a day.
Lastly, in accordance with Section 120 of CPA 1999, atthe conclusion of the proceeding, the Tribunal shall orderany document, record, material or other propertyproduced during the proceedings be delivered to therightful owner or be disposed in such manner as it thinksfit. If no person has taken delivery of those documentsand materials within six months, the ownership of thedocuments should be deemed to have passed to andbecome vested in the Government.