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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 79
August 1 , 2008

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Issues about consumer right

Syed Gouseuzzaman Haideri Ali

CONSUMER'S movement first started in the US in the late 19th Century. Increased industrialization and development in rail networks and in road transport created new opportunities for the business companies to advertise and to sell their products all over the country. Food companies and the meat packers began to centralize their operations and used refrigerated railroad cars to transport their products. During this time foods were processed in unhygienic conditions and they used dangerous preservatives and dyes in these processed foods. From these times, the US federal government, state governments and some private organizations had worked to solve consumers' problems and represent their interests.

However, the major protection activities did not begin until the 1960s. The basic rights of consumers were set forth by US President John F. Kennedy in his historic message to Congress on consumerism. These are (1) the right to safety, (2) the right to be informed, (3) the right to choose, (4) the right to be heard. Each of these rights is of major importance in the objectives of the consumers' protection movement. Later on Ralph Nader, a private citizen, emerged as the pioneer of consumers' protection movement. He became the driving force behind the passing of more than a dozen landmark consumer protection laws. Among them, of central importance, are the Hazardous Substances Act 1960, the Motor Vehicle Safety Act 1966, the Consumer Product Safety Act 1972 and the Wholesome Meat Act 1967.

Gradually, consumers' protection movement spread throughout the world in different countries. It spread to Canada, Mexico, Brazil, Germany, Hungary, Indonesia, Malaysia, Philippines, India and to many others. Finally consumers' movement came to Bangladesh as well. As a result Consumers' Association of Bangladesh (CAB) was established in 1978. CAB is performing a commendable role for the protection of consumers' rights. We also have a Consumers' Protection Bill, which is expected to be passed very soon.

However, in our country as well as in other countries, history testifies that consumers' rights were not completely neglected. Consumers' rights were protected indirectly through more general laws, even though the specific concept of consumers' rights did not exist at that time.

At this point, the technical definition of the word consumer is in order. A consumer is the last person in the chain of transactions, that is, a consumer purchases goods or services for his own consumption and not for resale.

In the laws of Bangladesh, the following may be observed. Section-37 of the Contract Act 1872 provides for the obligation of the parties for the performance of contract. Section-73 provides for the compensation for breach of contract. These sections of the Contract Act enforce obligations in favour of the promisee of the contract or the purchaser. The purchaser can be a wholesaler from the producer, a retailer from the wholesaler or a consumer from the retailer. Therefore, when the purchaser or a promisee of a contract is a consumer, these sections will amount to protection of the consumer.

In the same way, many other laws such as the Law of Torts, the Sale of Goods Act 1930, the Specific Relief Act 1877, the Penal Code 1860, the Railway Act 1890, the Transfer of Property Act 1882 and many other laws indirectly protect the consumers' rights.

It is not possible here to give details of all the laws which incidentally protect the consumers' rights but some important laws with cases are discussed below.

(i) Law of Tort
In the law of torts, there is a chapter on negligence, where the defendant has a duty of care to the plaintiff. If there is negligence on the part of the manufacturer or seller of goods and the buyer suffers, then he can sue the manufacturer or seller under the law of torts. The important cases where consumers' rights were upheld under the law of torts are:

Donoghue v. Stevenson 1932
In this case a decomposed body of a snail was found in a bottle of ginger beer after the plaintiff had already consumed a part of the contents from the bottle. The matter went up to the House of Lords and the liability of manufacturer was recognized.

Grant v. Australian Knitting
Mills Ltd, 1936

Here an underwear having excess of chemicals in it caused skin disease to the buyer. The manufacturer was held liable for the same.

(ii) Law of Contract
Sector-37 of the Contract Act 1872 provides for the obligations of the parties for the performance of contract. Under this section the law of contract can grant protection to a consumer by enforcing the promised contract, when the plaintiff is a consumer.

Duke of Somerset v. Cookson 1935
In this matter the plaintiff had special attachment to the particular property and there was no means for ascertaining the standard of damages caused by the non-fulfillment of the contract. So, the court enforced specific performance of the contract.

Section-73 of Contract Act 1872 provides for compensation for loss or damage caused by breach of contract. Under this section the law of contract can compensate the consumer, if the purchaser is a consumer.

Perry v. Sidney Phillips
and Sons (1982)

The plaintiff purchased a house in reliance on a survey report prepared by the defendant that the house was in good order. After moving in, the plaintiff found that the house was not in good condition. The Court of Appeal awarded damages to the plaintiff.

(iii) The Sale of Goods Act 1930
In the Sale of Goods Act 1930, there are some provisions regarding the duties of the seller, which are the rights of the buyer. So, when the purchaser is a consumer, these rights will become rights of the consumer. Section-33 provides that the first and foremost duty of the seller is to deliver the goods sold in accordance with the terms of the contract of the sale. The seller must put the goods in possession of the buyer.

In a contract of sale, the following are the implied warranties:
(1) Section-14(b), the buyer shall have and enjoy quiet possession of goods.
(2) Section-14(c), the goods shall be free from any charge or encumbrance in favour of any third party not declared or known to the buyer before or at the time when the contract is made.
(3) Section-16(3), an implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.

Ronald v. Vidoll
The defendant sold a motor car to the plaintiff. After some time the plaintiff discovered that it was a stolen car. It was decided by the court that the contract could be repudiated by the plaintiff for the non-fulfillment of the obligation regarding the title. So the plaintiff could recover the price from the defendant.

(iv) The Specific Relief Act 1877
Section-12 of the Specific Relief Act 1877 provides that the specific performance of a contract can be enforced by the discretion of the court, when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done and when the act agreed to be done is such that compensation in money for its non-performance would not afford an adequate relief.

Beharilal v. Sawan Singh 1935
In this case it was decided, damages can hardly be a satisfactory relief in case of contract for sale of immovable property. So, the specific performance of contract was decreed.

Here the purchaser of the land was surely a consumer. He did not purchase the land for resale.

(v) The Railway Act 1890
Section-62 of the Railway Act 1890 provides that the government may require any railway administration to provide and maintain in proper order, in any train worked by it which carries passengers, such efficient means of communication between the passengers and the railway servants in charge of the train as the government has approved.

Prothero v. Railway Executive 1951
Here the plaintiff, a ticket holder, when about to board the defendant's railway train at a station, got his foot between two uneven paving stones in the platform and injured his ankle. Held that the defendant had a contractual duty to the plaintiff to take reasonable care to see particularly that part of the platform over which the plaintiff had to pass in order to board a train was reasonably safe for him. The defendant had failed in his duty. The defendant was held liable. Surely, the railway passengers are always consumers.

(vi) Transfer of Property Act 1882
Section-55(1) deals with the duties of the seller. The seller is bound to disclose to the buyer any material defect in the property or in the seller's title thereto, to provide to the buyer on his request for examination of all documents of title relating to the property which are in seller's possession and on payment of the amount due in respect of the price, to execute a proper conveyance of the property to the buyer.

Section-55(6) deals with the rights of the buyer. The buyer is entitled to the ownership of the property which has passed to him. He is also entitled to the benefit of any improvement in or increase in value of the property.

Haji v. Dayabhai
In this case it was held that the nondisclosure of fact regarding the defect in the title by the seller to the purchaser amounts to a fraud on the part of the seller. So, the purchaser could claim damages.
The purchaser is also entitled to the specific performance of contract on payment of purchase money.

Jamshed v. Burjorji (1916)
In this case the specific performance of contract was enforced in favour of the purchaser on payment of purchase money.
Here, in the above mentioned cases the purchasers were consumers.

(vii) Penal Code 1860
The following provisions of the Penal Code of 1860 helped in the protection of consumers' rights to a great extent.
Section 272 provides that the adulteration of food or drink, intended for sale, as to make it noxious, is punishable with the imprisonment of six months or with fine of Tk. 1,000 or with both.

Section-273 provides that the sale of noxious articles as food and drink is punishable with the imprisonment of six months or with fine of Tk. 1,000 or with both.

Sections-274, 275 and 276 provide that the selling of adulterated drugs is punishable with the imprisonment of six months or with fine of Tk. 1,000 or with both.

Therefore, it can be understood that in the past the consumers were not altogether left unprotected. Consumers were protected through many other general laws though not particularly meant for consumer protection. Consumers' protection laws were hidden within those above mentioned laws in an embryonic form i.e. at a rudimentary stage. Before, the consumer laws were in a scattered form embedded within the other laws. After the concept of consumerism has come into being, the consumer laws are taking a shape and a definite form.

The writer is an Advocate of the Supreme Court of Bangladesh.


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