2. 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.
3. Advise David on:
(a) The most appropriate method for him to choose
other than litigation. Cite reasons for the chosen
method.
4. 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.
5. 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.
6. 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.
7. (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.
8. 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.
9. 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.
10.
11. Besides that, after filing Form 1, a consumer needs to
serve the claim to the trader. In this case, David needs to
serve the claim to Syarikat Cinta Sejati. In the notice of
claim and hearing where upon the claim being lodge, the
Secretary of the Tribunal shall give notice of the details of
the day, time and place of hearing in the prescribed form
to the claimant and the respondent as provided in Section
106 of CPA 1999.
12. After that, it will proceed with negotiation for settlement.
According to Section 107(1) of CPA 1999, the tribunal shall
assess whether it is appropriate in all circumstances for the
tribunal to assist parties to negotiate an agreed settlement in
relation to the claim. In making the assessment, the tribunal
shall have regard to any factors that are likely to impair the
ability of either or both parties to negotiate an agreed settlement
by virtue of Section 107(2) of CPA 1999.
In this stage, the trader can contact the consumer to discuss the
claim for purpose of explaining the dispute or to discuss on how
to settle it. If the parties reach an agreed settlement, the tribunal
shall approve and record the settlement and the settlement
shall take effect as it is an award of the tribunal as provided in
Section 107(3) of CPA 1999.
13. However, if it appears to the tribunal that it would not
be appropriate for it to assist the parties to negotiate
an agreed settlement or where the parties are
unable to reach an agreed settlement in relation to
the claim, the tribunal shall proceed to determine
dispute 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 should
state their defence or explanation to the claim.
14. Prior to the hearing, the parties must prepare for the
relevant documents regarding the claims and get
ready any witness for the hearing.
During the hearing, any party can bring along family
members, friends, and etc to assist the party at the
hearing. However, no lawyers are allowed to
represent parties at the hearing. According to
Section 109 of CPA 1999, the proceeding is open to
the public.
15. In order to get evidence, the tribunal can issue a summons
and served it and enforced it as if it were a summons issued
by a subordinate court.
On the other hand, according to Section 16Z of CPA 1999,
before the tribunal makes an award under Section 112, it
may in its discretion refer to the High Court a question of law
which arose in the course of proceedings. The tribunal may
do so if that matter may raise sufficient merit or doubt to the
case. If the Tribunal refers any question of law to the judge
of High Court, it shall make award in conformity with such
decision. In that situation, a Federal Counsel authorized by
the Attorney-General may appear on behalf of the Tribunal
in proceedings before the High Court.
16. 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;
17. a) That money be awarded to compensate for any loses or
damage suffered by the claimant;
b) That the contract be varied or set aside
c) That costs to or against any party be paid
d) 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.
18. In this case, if David manages to win his claims, the
tribunal may give any of the above awards to him. For this
problem, the most probable award is under Section 112(c),
(d), (e) and (f).
In giving award, the Tribunal shall give its reasons for its
decision in the proceeding. It is stated under Section 114 of
CPA 1999. If there is agreed settlement between David
and Syarikat Cinta Sejati, the Tribunal shall make written
record of terms of the agreed settlement reached by them
also every award made by it under Section 112 of CPA
1999.
19. According to Section 116 of CPA 1999, every agreed
settlement may be recorded by the Tribunal and
every award made by the Tribunal shall be final and
binding on all parties to the proceeding. It is deem to
be an order from the Magistrate Court and can be
enforced accordingly by any party to the proceeding.
Next, the secretary of tribunal shall send a copy of
the award made by the Tribunal to the Magistrate
Court and it will be recorded.
20. After the award is given, David and Syarikat Cinta Sejati
need to comply with the award. The failure to do so within
14 days may result to criminal penalty by virtue of
Section 117 of CPA 1999. In such event, the offender
may be convicted to a fine not exceeding RM 5,000 or
imprisonment for a term not exceeding two years or both.
In the case of continuing an offence, the offender will be
liable to a fine not exceeding RM 1,000 for each day or a
part of a day which offence continues after conviction.
21. The Tribunal shall adopt such procedure as it thinks
fit and proper. In applying the above provision, if
David and Syarikat Cinta Sejati were failed to comply
with the award made by the tribunal, they could be
convicted to a fine not exceeding RM5,000 or
imprisonment not exceeding two years or both. If any
of them continuously fails to comply with the award,
they would be liable to a fine not exceeding RM
1,000 for each day or a part of a day.
22. Lastly, in accordance with Section 120 of CPA 1999, at
the conclusion of the proceeding, the Tribunal shall order
any document, record, material or other property
produced during the proceedings be delivered to the
rightful owner or be disposed in such manner as it thinks
fit. If no person has taken delivery of those documents
and materials within six months, the ownership of the
documents should be deemed to have passed to and
become vested in the Government.
