CONSUMER PROTECTION & BREACH OF CONTRACT

Published by The Daily Star on 3rd July, 2010 (Link Above)

This week your advocate is Barrister Omar Khan Joy of the Supreme Court of Bangladesh and Head of ‘The Legal Counsel’. His professional interests include commercial law, corporate law, family law, land law, constitutional law, banking law, arbitration and intellectual property laws. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.


Reader’s query
For the second time I feel a sense of fraud practiced upon me. I bought a laptop one year back. The seller told me that it would give a power back up for 4 hours. But from the beginning it gave support just for two hours or more. As of now the battery even does not give me support for a second. I have lost the warranty papers and the buying receipts as I was and am always an oblivious customer. Prior to this I bought a computer from elephant road market, which also betrayed with me and didn’t give me proper service, used to hang during typing. So happens in buying CDs and DVDs, pen drives etc. I’m sick of buying all these things. How can we take actions against all these unfair business practices? Under which law and where?

Rahad Kabir,
Kolabagan, Dhaka

Response
I would like to thank you very much for asking me to provide my opinion regarding matters related to unfair business practices as stated in your query. It has been understood that the laptop that you have bought does not correspond with the descriptions given by seller and you are facing similar problems with many other electric equipment. This is unfortunately a very common phenomenon in our country where the market is full of fake and cheap products. I think at least all city dwellers have faced similar problems.

Of course there are legal avenues for redressal of your grievances. But, it is not always the wisest thing to seek formal legal remedies in such regular day-to-day matters. Though, it is certainly very important to be acquainted with your lawful rights so that if needed you can enforce them in the most appropriate manner. Consequently, before exploring the law, I am more inclined to give some practical tips, which may help the consumers to make them self protected. Prevention is certainly better than cure, isn’t it? Self-awareness is particularly important in a country like ours where the process of seeking legal remedy is not very conducive to litigants.

Whenever you are buying an expensive electronic, the rule of thumb is to buy it only from an authorized shop. There are now-a-days many authorized dealers, franchisees and shops who sell the original products with proper warranty. In case you are not buying a popular brand item, even then you should go for those shops that will be ready to provide you with some kind of warranty. If, on the other hand, the consumers want to make very short time benefit by buying a product by paying a relatively cheaper price where the seller does not provide any warranty, then it is understandable that the product is either fake or not of good quality. In such cases, it is more likely than not that the customer will soon face troubles of numerous kinds. So far as the warranty card or the invoice/ cash memo is concerned, it is important that you preserve it carefully at least during the warranty period. Without the production of any purchase document or warranty card, it may be hard to get a replacement or get it repaired. Though, you may request the seller to search in his sale record, but practically you may not force him. Regrettably, the business practice in our country has not yet developed in a consumer friendly manner and as such it is imprudent to expect any real support from the seller in case the warranty card is lost.

Having explored the practical sides let me briefly discuss the legal points. The Contract Act 1872 and the Sale of Goods Act 1930 provide the relevant provisions regarding consequences of the contracts of sale of goods.

The law provides that in case of any sale of goods, the goods in issue must correspond with the verbal or written description. If the features of the goods or its performance does not match with what has been stated then there is a breach of the terms of the contract. Furthermore, this is also likely to be termed as misrepresentation. The law said the goods must be of satisfactory quality and fit for the purpose. In case where the goods are unsatisfactory, this may also to be treated as a breach of contract. Your remedy will lie for breach of contract and for misrepresentation. If you want to go for legal action, it is prescribed that before going to the court, you should serve a legal notice through a lawyer asking your demand of compensation. In case where the legal notice remains unattended by the seller’s side you may go for a suit in the appropriate civil court.

As far as the purchasing of CDs and DVDs are concerned, these items are mostly pirated. Thus, it is upon the owners to bring an action for the violation of Intellectual Property Rights in these items. I suggest you to purchase genuine CDs, DVDs (if at all available!). In most of the cases, for these smaller items the vendor will simply change it in case of a glaring defect in it.

It may be mentioned here that the parliament has enacted the long awaited Consumers Rights Protection Act in April 2009 but unfortunately the necessary bodies under the Act has not yet been established. Once the proper implementation of the Act will start, the consumers may lodge their complaint within 30 days from arising cause of action to the magistrate with prior approval of relevant authority (for example from the DG of national consumers rights directorate)

I hope that the aforesaid guidelines shall help you to understand your queries regarding the issues of unfair business practices.

For detailed query contact omar@legalcounselbd.com.