Abdul Khaliq bin Nazeri 2011658452Mohamad Nurhidayat Putra bin Sulaiman 2011808066 Muhamad Atif bin Abdullah 2011670294
Maria bought a pair of Bonia sunglasses worth RM450.00from Syarikat Nice 2C. After using the sunglasses for a fewdays, she found marks on her cheeks which made her feeluncomfortable. Consequently, Maria requested SyarikatNice 2C to replace her sunglasses with another pair.Syarikat Nice 2C refused to do so and instead asked Mariato purchase another pair of sunglasses. Maria felt that itwas unreasonable and refused to do so. Maria offered toreturn the Bonia sunglasses and wanted a refund of theRM450.00 that she had paid for it. Syarikat Nice 2Cdeclined the offer. Maria wants to file her claim againstSyarikat Nice 2C at the Tribunal for Consumer Claims(hereinafter the "Tribunal").
Advise Maria on the following issues;a) the procedures to be complied with in making her claim at the Tribunal.b) the possible order(s) that the Tribunal may award to her.
There are several procedures to be complied within order for Maria to file her claim at the Tribunal. The procedure for filing the claim and registrationis laid out under Part XII of the Consumer ProtectionAct 1999 and Consumer Protection (The Tribunal forConsumer Claims) Regulations 1999.
First of all, according to section 5(1) of theConsumer Protection (The Tribunal for ConsumerClaims) Regulations 1999, every claim lodged with theTribunal shall be in Form 1 (the “Statement of claim”).In the statement of claim, the claimant shall state theamount and particulars of the claim. Form 1 shall besigned or thumb-printed by the claimant in this caseMaria personally. Then, section 6 of the ConsumerProtection (The Tribunal for Consumer Claims)Regulations 1999 state that Form 1 shall be filed infour copies in the Tribunal’s Registry together withthe prescribed fee.
After that, section 7 of the Consumer Protection (TheTribunal for Consumer Claims) Regulations 1999 state thatThe Secretary or Assistant Secretary to the Tribunal shallcause Form 1 filed with the Tribunal to be registered,dated, signed and sealed with the seal of the Tribunal andshall return two sealed copies to the claimant for service onthe respondent. A respondent upon receipt of the sealedcopy of Form 1 from the claimant shall, if he disputes theclaim, file his defence and counter-claim (if any) in Form 2which can be obtained free from the nearest Tribunal’soffice. Form 2 must be filed in 4 copies at the sameTribunal’s office where Form 1 was filed within 14 days afterthe receipt of Form 1 by the respondent; Form 2 will beregistered, dated, signed and sealed by the Secretary orAssistant Secretary to the Tribunal and two sealed copies ofForm 2 will be returned to the respondent for service tothe claimant.
Upon lodging the claim, section 18 of theConsumer Protection (The Tribunal for ConsumerClaims) Regulations 1999 stated that the Tribunal, theSecretary or an Assistant secretary shall fix the date,place and time of hearing in Form 4 and serve noticeof hearing on both the claimant and respondent. TheSecretary or the Assistant Secretary shall serve Form 4on the claimant and respondent not less than 14 daysbefore the date of hearing.
Under section 107 of the Consumer Protection Act,the Tribunal shall, as regards every claim within itsjurisdiction, assess whether, in all the circumstances, it isappropriate for the Tribunal to assist the parties tonegotiate an agreed settlement inrelation to the claim. Inmaking an assessment the Tribunal shall have regard to anyfactors that, in the opinion of the Tribunal, are likely toimpair the ability of either or both of the parties tonegotiate an agreed settlement. Where the parties reach anagreed settlement, the Tribunal shall approve and recordthe settlement and the settlement shall then take effect asif it is an award of the Tribunal. Where it appears to theTribunal that it would not be appropriate for it to assiststhe parties to negotiate an agreed settlement in relation tothe claim; or The parties are unable to reach and agreedsettlement in relation to the claim, the Tribunal shallproceed to determine the dispute.
Section 108 of the Consumer Protection Act provides forthe right to appear at the hearings. Upon a claim being lodgedwith the Tribunal, the Secretary or Assistant Secretary to theTribunal will issue a notice in Form 4 stating the date, place andtime of hearing and thereafter serve the notice of hearing onboth the claimant and the respondent, not less than 14 daysbefore the date of hearing. According to section 108(2) if theCPA, No party shall be represented by an advocate and solicitorduring a hearing before the Tribunal and every party to a hearingshall conduct its own case at such hearing.If the claimant is aminor or a person under a disability he may be represented byhis next friend or guardian ad litem.Where a respondent is acompany or a firm, it may berepresented by its full time paidemployee.The hearing before the Tribunal shall be presided overby a member of the Tribunal (known as a “President” duringsuchhearing) sitting alone, who may at any time assist the partiesin conducting their cases.At the hearing of a claim, every partyshall be entitled to attend and be heard as provided undersection 108(1) of the CPA. According to section 109 of the Act,all proceedings before the Tribunal shall open to public.
First Maria should lodge the complaint to the Tribunal for Consumer Claim in Form 1 which is the statement of claim. She should state the amount and the particular claim that she would like to do which is to claim for refund of RM415 for the sunglasses. Then she should thumbprint the form personally. Then she should file Form 1 in 4 copies to the Tribunal together with the prescribed fee. The form then should be registered, dated, signed and sealed with the seal of the Tribunal and shall return 2 sealed copies to Maria for service on the Syarikat Nice 2C.
Syarikat Nice 2C after receiving Form 1 shall, if they dispute file their defence and counter claim in Form 2 and the same procedure applied as in Form 1. The Secretary or Assistant Secretary of the Tribunal shall fix the date, time and place of the hearing in Form 4 and serve notice of hearing to Maria and Syarikat Nice 2C at least 14 days before the date of hearing. The Tribunal then will regards every the claim and assess it whether it is appropriate for Tribunal to assist the parties to negotiate an agreed settlement in relation to claim.
If Maria and Syarikat Nice2C reach a settlement the Tribunal shall approve and record the settlement and the settlement shall then take effect as an award of the Tribunal. If it would not be appropriate to assists the parties to negotiate an agreed settlement in relation to claim; or The parties unable to reach and agreed settlement in relation to the claim, the Tribunal shall proceed to determine the dispute.
In Maria’s case, there are few possible orders thatthe Tribunal may award to her. According to Section112 (1) of the Consumer Protection Act 1999 (CPA),Tribunal shall, where practicable, make its awardwithin sixty days from the first day the hearing beforethe Tribunal commences.
Based on Section 112 (2) (c) of the CPA, the goodssupplied or re-supplied to the consumer be replaced orrepaired. Section 112 (2) (d) of the CPA provides thatthe price or other consideration paid or supplied bythe consumer or any other person be refunded to theconsumer or that person. Besides, in Section 112 (2)(f) of the CPA, that the money be awarded tocompensate for any loss or damage suffered by theclaimant.
Thus, Maria may have her sunglasses to bereplaced or repaired, or her money to be refunded bySyarikat Nice 2C. She also can be awardedcompensation for the damages she suffered, which arethe marks on her cheeks that made her feeluncomfortable.