Disputes In A World Of Consumerism: Tribunal For Consumer Claims

Like it or not, consumerism had engulfed our society, fueled further by the rise of e-commerce. The idle scrolling of Shopee or Lazada, followed by a barrage of parcels throughout the week has been a norm for some during the lockdown period.

In this article, let’s discuss the other side of consumerism where consumers are equipped with the knowledge of their rights and seek to protect themselves from unscrupulous suppliers or manufacturers.

The Law

The first point of reference would be the Consumer Protection Act 1999 (“CPA 1999”), which name is self-explanatory.

The rights of the consumers, as well as the responsibilities of the suppliers and manufacturers, are carved out in the CPA 1999. Best of all, no supplier or manufacturer is allowed to contract out of the CPA 1999. If they ever hide a clause to contract out of the CPA 1999 in the fine print and whip it out to address a legitimate claim, they will be guilty of an offence.

Acknowledging that the court system may be too intimidating or expensive for the general public to seek recourse against unethical suppliers or manufacturers, the Parliament created the Tribunal for Consumer Claims (the “Tribunal”).

The Tribunal is an independent body set up to hear and determine claims filed by consumers under the CPA 1999. As legal representation is not allowed and the procedures are fairly straightforward, consumers can have quick and easy access to their remedy.

So what can the Tribunal hear?

The Tribunal’s jurisdiction is limited to claims:

• related to the supply of goods and services within the ambit of the CPA 1999;
• not exceeding RM50,000.00; and
• based on a cause of action which accrued within 3 years of the claim.

Example: On 25.12.2018, Jake bought a travel package to Belfast for RM48,500.00 from Wanderlust Sdn Bhd (“Wanderlust”), where he is promised accommodation at a 5-star hotel, dining at Michelin Stars restaurants and a luxury tour at the tourist attractions. However, when he travelled on 15.03.2019, he was forced to stay in a hostel, where he had to share a room with 7 other strangers, dine at a cheap buffet-style restaurant and experience a tour that made him countdown to the flight back home. Jake will have until 14.02.2020 to file a claim in the Tribunal.

* Please take note that if the travel package costs RM100,000.00, Jake cannot split his claim into 2 (RM50,000.00 each) against Wanderlust, to fit within the monetary jurisdiction of the Tribunal. However, Jake may choose to abandon RM50,000.00 of the claim and bring 1 claim against Wanderlust for RM50,000.00.

So, what can’t the Tribunal hear?

According to s. 99 of the CPA 1999, the Tribunal cannot hear claims regarding: 

personal injury and/or loss of life; 

• the recovery of land or any estate or interest in land; 
• any dispute for concerning the title to land or an estate, or an interest in land; 
• dispute concerning the entitlement of any person under a will or on any intestacy;
• healthcare services;
• aviation services;
• dispute related to matters concerning –
• franchise;
• good will;
• trade secret or other intellectual property;
• any chose in action (bundle of personal rights over property which can only be claimed or enforced by action, and not by taking physical possession); or
• where any tribunal has been established under any other written law to hear and determine claims on the matter which is the subject matter of such claims. 

Procedures

Filing

Jake has a claim that the Tribunal can hear and determine, now what?

File 4 copies of Form 1 to the Tribunal.

Essentially, Form 1 contains the information of the claimant (Jake) and the respondent (Wanderlust), amount claims and the particulars of the claim.

Form 1 must be signed or thumb-printed by Jake.

Pay RM5.00 upon the filing of Form 1.

2 sealed and signed copies will be returned to Jake.

Serve the sealed copy of Form 1 to Wanderlust.Since Wanderlust is a company, the service can be effected by:

Leaving or tendering the document with the director, manager, secretary or other similar officer.

Posting the document in a pre-paid registered letter addressed to the director, manager, secretary or other similar officer at the registered office or at its address for service.

Upon service of Form 1, Wanderlust will now decide on whether to defend the claim, file a counterclaim or choose to ignore it altogether. If Wanderlust ignores the claim, the Tribunal may make an award in Form 5 or adjourn the hearing to enable Wanderlust to file its defence. However, Wanderlust may apply to set aside the award within 30 days from the receipt of the award by filing and serving Form 12.

What should Wanderlust do to defend the claim and file a counterclaim?

File 4 copies of Form 2 to the Tribunal.

Wanderlust has 14 days from the date of service of Form 1 to file Form 2.

Form 2 shall contain the particulars as to why Wanderlust disputes the claim as well as the amount and particulars of the counterclaim (if any).

Form 2 shall be signed by a director, manager, secretary or other similar officer of Wanderlust.

Pay RM5.00 upon the filing of Form 2.

2 sealed and signed copies will be returned to Wanderlust.

*Note: If Wanderlust admits to the claim in Form 2, the Tribunal will make an award to Jake in Form 6.

Serve the sealed copy of Form 2 to Jake.As Jake is an individual, the service can be effected by:

Leaving or tendering the document to Jake.

Posting the document in a pre-paid registered letter addressed Jake at his address for service or last known address.

What should Jake do if Wanderlust files a counterclaim?

File and serve the defence to the counterclaim in Form 3.

A quicker and more accessible alternative to the filing of the forms physically at the counter of the Tribunal is to file the claim via https://ttpm@kpdnhep.gov.my. Payment of fees can be made online within the portal. 

Hearing

After filing the claim, the Tribunal will fix a date, place and time of hearing in Form 4 and serve the notice of hearing on both Jake and Wanderlust.

At the hearing, Jake is entitled to adduce evidence, call any witness or produce any document, record or thing in support of his case. For example, Jake may call a fellow tourist, Tom, who bought the same travel package and went on the tour with him as witness. If Tom refuses to appear as a witness, Jake may file Form 11 to summon Tom.

Similarly, Wanderlust may tender evidence to support their case. 

After they closed their cases, Wanderlust may make a brief oral or written submission followed by Jake. 

Decision

After the hearing, the Tribunal will give an award in Form 10 (usually within 60 days from the 1st day of the hearing). 

Note:

If Jake did not appear during the hearing, the Tribunal may dismiss Jake’s claim and make an award for the counterclaim (if any) in Form 7.

If Wanderlust did not appear during the hearing, the Tribunal may proceed with the hearing in the absence of Wanderlust and make an award in Form 8 or adjourn the hearing to a later date.

If neither party appears, the action will be struck out.

If the parties settled during the hearing, the Tribunal may make an award by consent in Form 9.

The award shall be final and binding and be deemed to be order of a Magistrate’s Court and be enforced accordingly by any party to the proceedings. The Tribunal will send a copy of the award to the Magistrate’s Court to be recorded.

If either party fails to comply with the award, it is a criminal offence. If convicted, the party will be liable to a fine up to RM10,000.00 or imprisonment up to 2 years, or both.

Types of Award

The Tribunal may, providing its reasons, make an award such that:

• a party to the proceedings pay money to any other party;
• goods be supplied or resupplied;
• goods be replaced or repaired;
• the price or other consideration paid or supplied by the consumer or any other person be refunded to the consumer or that person;
• a party comply with the guarantee;
• money be awarded to compensate for any loss or damage suffered by the claimant;
• the contract be varied or set aside, wholly or in part;
• costs (up to RM200.00) to or against any party be paid;
• interest be paid on any sum or monetary award at a rate not exceeding eight per centum per annum, unless it has been otherwise agreed between the parties; and/or
• the claim is dismissed.

What if Jake or Wanderlust is not satisfied with the award?

There is no avenue to appeal against the award. However, Jake or Wanderlust may apply to the High Court to judicially review the award, which is a topic for another day. 

Online Shopping

Even with the quick and easy recourse provided by the Tribunal, seeking remedy from online sellers may not be an easy feat. This is especially when the online marketplace is filled with scammers or unethical sellers set up an account using false information. When you cannot identify the perpetrator, it is impossible to initiate a claim. To that end, always make sure to deal with reliable sellers and do the necessary background check before purchasing. 

Be a smart consumer.