CONSUMER RIGHTS IN BANGLADESH: A CRITICAL STUDY

 

 

 

CHAPTER FOUR

LEGAL MECHANISMS TO PROTECT CONSUMER RIGHTS IN BANGLADESH

 

4.1 Introduction

 The existing mechanism of legal safeguard to the consumers in Bangladesh is feeble and obsolete. Further whatever little enactments are available; they are not strictly enforced for the protection of the rights of the general consumers. The consumers in Bangladesh are thus deprived of their rights daily at every sphere of their lives. Consumer is a person who just enjoys the outcome of industrialization by way of disbursement not directly involved in a trade, but receives goods and services from businessmen. Business either be legal or illegal or the businessmen can argue for reasonable profit from the customer, here government is come into play vital role To keep the business profitable and legal, some policies have been established by the government to create a balance between profit and quality. Such policies are largely about goods and services, supplied to the consumers or customers, who wish to purchase or hire goods and/or services from the sellers or manufacturers.[1] The concept of consumers or customer and the very notion consumer protection have been depicted in this chapter.

4.2 Definition of Consumer

A consumer or “Buyer” is defined as “individual’’ who buys, exhausts, maintains and disposes of products or services” and although, many may still be familiar with the doctrine of “Let the Buyer Beware” (Caveat emptor) this is no longer the case with the advent of Consumer Protection law.

 “Consumer” means any individual who in relation to a commercial practice is acting for purposes which are outside his business.

 Section-2 (19) of the Consumer Protection Act, 2009 in Bangladesh states the definition of consumer.

“Consumer” means such type of person:

  1. a)     Who except for the purpose of resale and commercial intention.
  2. i)      Purchases or agrees to purchase any product by payment of a price.
  3. ii)      Purchases or agrees to purchases by part payment of price.

iii)    Purchases with the promise of paying price in extended term or by installments.

  1. b)    Who uses the product purchased under clause (a) with the consent of the purchaser
  2. c)   Who, after purchasing a product, uses it commercially for the purpose of making a living self –employed
  3. d)    Who,
  4. i)    Hires or receives otherwise any service by payment or promises to pay the price.
  5. ii)    Hires or receives otherwise any service by part payment or promises to pay partly the price.

iii)   Hires or receives otherwise any service by paying the price in an extended term or by installments.

  1. e)     Who consumers the service received under clause (d) with the consent of the service consumer.

4.3 Who is a Consumer

Generally, the term “consumer” indicates everyone of a society including a baby today born to the most aged person; from the head of the state to the rickshaw puller on the street. In simple words, the persons who use or consume products or services are consumers. In the eyes of law, a person is required to fulfill certain conditions to be regarded as a consumer. Consumers are those persons who, for one or for the dependants, buy or use or obtain a permission to use any products or service by offering a price, prompt or due or in installments. In addition, any person using such products with the consent of the buyer will also be treated as a consumer. But if someone buys something for the purpose of resale or for any other commercial purposes, he or she shall not be a consumer as such. Personal consumption is the main test for defining oneself as a consumer. Under CRPA 2009, a person who buys goods to earn a livelihood by ‘self-employment’ also falls within the definition of a consumer.[2]

 Although, to identify the real consumer is tough for a seller because of due intention of a consumer. whether a purchaser is a consumer or not it depends on the purchaser’s intention in buying the goods for him. It is said that consumer protection is the achieved or intended result of consumer policy.

 

4.4 Consumer Protection and Consumer Law

It is now admitted that the law as it stands does not give sufficient protection to the consumer. As a matter of fact, the term consumer is by origin an economic concept and until quite recently, it was simply foreign to legal usage and conceptualization. However, with the growing realization of the need for special legislation for the protection of consumers and only consumers, it become important to give the term ‘consumer’ a fixed legal meaning.

 Consumer protection consists of laws and organizations designed to ensure the rights of consumers as well as fair trade competition and the free flow of truthful information in the marketplace.[3] The laws are designed to prevent businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors and may provide additional protection for the weak and those unable to take care of themselves. Consumer protection laws are a form of government regulation which aims to protect the rights of consumers. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue, such as food. Consumer protection is linked to the idea of “consumer rights” (that consumers have various rights as consumers), and to the formation of consumer organizations, which help consumers make better choices in the marketplace and get help with consumer.

Other organizations that promote consumer protection include government organizations and self-regulating business organizations such as consumer protection agencies and organizations, the Federal Trade Commission, ombudsmen, Better Business Bureaus, etc.

A consumer is defined as someone who acquires goods or services for direct use or ownership rather than for resale or use in production and manufacturing.[4]

Consumer interests can also be protected by promoting competition in the markets which directly and indirectly serve consumers, consistent with economic efficiency, but this topic is treated in competition law.

4.5 What is Consumer Rights Law

 This legal area encompasses a large body of laws enacted by the government to protect consumers by regulating many of the following business transactions and practices: advertising, sales and business practices; product branding; mail fraud; sound banking and truth in lending; quality produce and meats; housing material and other product standards; and all manner of other types of consumer transactions. Some states also regulate door-to-door sales, abusive collection practices and referral and promotional sales.

Consumer protection law or consumer law is considered an area of law that regulates private law relationships between individual consumers and the businesses that sell those goods and services.  Consumer protection covers a wide range of topics, including but not necessarily limited to product liability, privacy rights, unfair business practices, fraud, misrepresentation, and other consumer/business interactions.

Consumer protection laws deal with a wide range of issues including credit repair, debt repair, product safety, service and sales contracts, bill collector regulation, pricing, utility turnoffs, consolidation, personal loans that may lead to bankruptcy.

 

4.6 Concept of Consumer Rights Protection Law

According to a leading European author on the subject, consumer law comprises “the body of standards, rules and instruments representing the juridical fruit borne by the various efforts that have been made to secure or improve the protection of the consumer on the economic market and to promote the interests of the consumerist” to establish a balance of power between consumers and their economic partners or, probably more realistically, to define the means whereby the existing imbalance can be reduced.[5]

 In a narrower sense, consumer law “focuses mainly on citizens entering transactions to obtain products and services from commercial enterprises.

 It is now accepted in Sweden and other Scandinavian countries that the “legal consumer concept must be confined to private persons who are acquiring goods, services or anything else of value mainly for their own use and not for resale or use in business.[6]

4.7 Importance of the Protection of Consumer Rights

It is now universally acknowledges that the observance of basic human rights is the cornerstone of peace and security for all nations. A consumer right is considered as a basic human rights as part of right to life. Many European countries have already inserted „consumer rights‟ in their constitution for giving special preferences e.g. Spain.[7]

 The constitution of Bangladesh enshrines „right to life‟ as a fundamental right that indirectly protects consumer rights. The constitution also states that it is the fundamental responsibility of the State to ensure the basic necessities of life, including food, clothing, shelter, education and medical care with special regard to public health and morality.

 In this digital era, the world is considered as a global village. So, concern for consumer rights rarely begins or ends at any single nations boundaries, and effective action to protect and promote consumer rights, whether at home or abroad, can be furthered by the imaginative use of national, regional or international techniques. In the European Countries a consumer’s right is protected through common directives applicable equally for all the EU nations. The World Trade Organizations (WTO) has a great role in regulating trade affairs through different agreements among various nations. The United Nations (UN) has adopted guidelines for the protection of consumer rights.

 It is widely accepted by the scholars that „trade and business‟ relates to the socio-economic and religious conditions of a particular community. Bangladesh, a developing country with over population, is dependent upon the foreign countries for its essential commodities and imports huge quantities of food, cosmetic and essential products every year especially from India, Japan, China, the USA and the EU countries.[8] It has very good relations with the Middle East countries and earns huge foreign exchanges by exporting goods, medicines and apparels.

 The religious prohibition on consumption of some food and food items has a great impact over consumer rights. It is the prime responsibility of the state to ensure all those rights to its citizens.

 So, the importance of the protection of consumer rights carries a great value towards humanity. To ensure security and safety in life, the consumer rights protection related Laws should be effectively enforced. The number of immature and unnatural death will be reduced if the consumer rights are duly ensured. Effective enforcement of consumer rights shall impact widely on economic progress in national and international level. The consumer related laws should be enforced equally for all the citizens irrespective of their nationalism or race, sex, color, language, religion etc.

4.8 Rights of a Consumer

The declaration made by former US President John F. Kennedy in 1962 outlined only four basic consumer rights:

 (1) the right to safety;

(2) the right to be informed;

(3) the right to choose; and

(4) the right to be heard.

Worldwide consumer movement led by Consumers International (CI), a global federation of over 250 consumer organizations, added four more rights:

(5) the right to satisfaction of basic needs;

(6) the right to redress;

(7) the right to education;

(8) the right to a healthy environment.

Together these eight rights form the basis for current consumers’ movement worldwide.” Now-a-days, consumer rights include more sectors like banking, telecommunication etc. In Bangladesh a lot of laws (around 61 laws, list given below) are prevailing on consumer rights that aim to ensure safety products and security in service.

 Section 2 (20) of the Consumer Rights Protection Act, 2009 states that “Acts against consumer rights” mean:

  1. a) Selling or offering to sale at a price higher than the price prescribed by any law or Rule for any product, medicine or service;
  2. b) Knowingly selling or offering to sale any adulterer product or medicine;
  3. c) Selling or offering to sale any product which has mixture of any object that is dangerously harmful for human health and mixture of such object with food is prohibited by any Act or Rule;
  4. d) Deceiving people in general by false and untrue advertisement with the purpose of selling any product or service.
  5. e) Not to supply properly the product or service as promised in exchange price;
  6. f) To sale or supply in a weight lesser than that has been promised at the time of such sale or supply;
  7. g) The scale or instruments of weighing using for sale or supply of any product of a business establishment showing over weight that in actual weight;
  8. h) Using less than in promised weight in time of sale or supply of a product;
  9. i) The using ribbon for measuring length in any business establishment showing more length than in actual size;
  10. j) To make or manufacture any counterfeit product or medicine;
  11. k) To sale or offer to sale any date expire product or medicine;

 Commission of any act which is dangerous to the life or safety of the service consumer that is prohibited under any Act or Rule;

 We, therefore, may come to a conclusion that the prevention of the above „acts against consumer rights‟ means to ensure consumer rights.

4.9 Aspects of Consumer Protection

There are three aspects of consumer rights protection, which every country must consider.

 First, the aspect of ‘voluntary protection’ which means that consumer’s themselves would voluntarily set up associations or organizations to safeguard their own rights and interests. These associations/organizations generally work as pressure groups on the government for consumer rights issues. There are many such voluntary organizations in India, Pakistan, Sri Lanka and other countries of the world. In Bangladesh, the Consumers’ Association of Bangladesh (CAB) was established in 1978.

 Second, the aspect of ‘Institutional Protection’. By establishing national institutions to safeguard and promote consumer rights of citizens this aspect of consumers’ protection can be ensured. For example, in 1914 the Federal Trade Commission, in 1927 the Food and Drug Administration and in 1970 the National High Traffic Administration were set up in the USA; the United Kingdom established the office of Director-General of Fair Trading; Sweden set up the Consumer Agency KOV and Consumer Ombudsman KO; India established National Consumer Protection Council, various State Consumer Protection Councils, National Consumer Disputes Redressed Commission with State Commissions and District Forums; Pakistan set up the Islamabad Consumer Protection Council; Sri Lanka and Nepal set up the office of the Commissioner of Internal Trade and the Consumer Protection Council respectively.

 Third, the aspect of ‘Statutory Protection’, which can be guaranteed by enacting relevant laws for protecting the rights and interests of the consumers. Many countries of the world, including those in Asia, have already enacted comprehensive laws in this regard. For example, the Consumer Protection Fundamental Act 1968 in Japan, Consumer Protection Act 1979 in both Thailand and Sri Lanka, Consumer Protection Act 1986 in India, Consumer Act of the Philippines 1990 in the Philippines, Islamabad Consumers Protection Act 1995 in Pakistan, Consumer Protection Act 1998 in Nepal, The Law on Consumer Protection 1999 in Indonesia and Consumer Protection Act 1999 in Malaysia were enacted.

4.10 Consumer Perceived Value

Perceived value is consumer’s estimate of the product’s overall capacity to satisfy his or her needs. It is the consumer’s overall assessment of the utility of a product based on perceptions of what is received and what is given or what might be given.[9]

Customer perceived value (CPV) is the difference between the prospective customer’s evaluation of all the benefits and all the costs of an offering and the perceived alternatives.

Total customer value is the perceived monetary value of the bundle or economic, functional, and psychological benefits customers expect from a given market offering.

Total customer cost is the bundle of costs customers expect to incur in evaluating, obtaining, using, and disposing of the given marketing offering.

4.11 Constitutional Measure

The Constitution of Bangladesh, nearly dormant about the consumer protection rights. Though it recognizes some rights relating to consumer protection under its ‘fundamental principles of state policy’ [10]but it is so inactive that hardly can turn out the good environment for Bangladeshi people. The provisions of consumer protection can be found at Articles 15 and 18 of the Constitution[11]. However, these provisions are mainly focused on the vital issues of ‘health’ and ‘food’ than on other consumer rights. Moreover, the Bangladeshi government had never paid any attention to include consumer related rights under the ‘fundamental rights’ [part-(iii)] of the Constitution. Besides these no others government was sincere enough to implement the rights of consumers, consequently, the consumer rights protection issues in Bangladesh remain mostly non-enforceable in the administration of justice.

4.12 Legal Arrangement on Consumer Protection

Furthermore, there are sets of legal arrangement in respect of consumer protection which has got direct bearings on this topic. Several statutes have contain the direction regarding consumer protection throughout the era. For example,

(i) the Bangladesh Penal Code 1860.[12]

 (ii) the Poison Act 1919,

(iii) the Dangerous Drug Act 1930,

(iv) the Trade Mark Act 1940,

(v) Sale of Goods Act 1930

(vi) the Special Powers Act 1974,

(vii) the Standards of Weights and Measures Ordinance 1982,

(viii) the Bangladesh Standards and Testing Institute Ordinance 1985,

(ix) the Narcotics (Control) Act 1990,

(x) the Safe Blood Transfusion Act 2002, etc. Present needs;

(xi) Animal Slaughter  (Restriction) and Meat Control (amend.) Ordinance 1983[13]

The above mentioned laws are enacted for meet up the various purpose in different times, the Bangladesh Penal Code1860, merely a substantive law, is of purpose to fixing definition of offence and punishment thereof. Sections 264-267, 272-276, 478-483 just describe the act which constitute the infringement of individuals consume related rights and punishments thereof[14].

The Poison Act,1919 discuss about the illegal amalgamation of poisonous chemical with the fruits,beverage,or any kinds of foods or material which is drinkable or edible seriously or somehow injurious to public heath.

The Dangerous Drug Act 1930, mainly focus on the drugs consumption by sick persons. The purpose of Drugs consumption is totally different from the others edible thing. Where the others food are taken for fulfilling the stomach or in demand of appetite, then drugs are taken in case of emergency sickness only. Most of the people including high educated and illiterate are not known enough about the authentication of drugs. This statute has been enacted for prevention of manufacturing the frugal drugs.

The Trade Mark Act 1940, not directly discuss about the consumer rights but the provisions contained are very much read with consumer benefit. Generally, trade mark indicates about the good will of a company. People can easily get desired product by indicating trade mark in this way trade mark protect consumer benefit or rights.

The Special Powers Act 1974, specifically not discuss on consumer rights but slightly give emphasis on prevention of adulteration of food. the Standards of Weights and Measures Ordinance 1982,deliberate about the accurate weight and measurement. It is also a big deprivation for consumers to get improper measurement.[15]

The Bangladesh Standards and Testing Institute Ordinance 1985, actually empowered government to have a authority for the testing of standardization of a product(BSTI).The office of  Bangladesh Standards and Testing Institute is situated at Karowan Bazr,Dhaka the main function of this institution are; to cheek the quality of product and certify the institution to carry out the business.[16]

 Under the existing legal regime, the aggrieved consumers themselves cannot go to the court to sue against the violators. It is only the designated government officials empowered under these laws, who can initiate and sue against the violators. The provisions of penalty or punishment under the current laws are so negligible that nobody cares to abide by such laws; and finally, the laws are not effectively enforced.[17]

4.13 The Consumer Rights Protection Act, 2009:

  1. Liability of seller to third party

The third party, who again buy or use the products with the consent of the former buyer, along with the seller or the service provider will be liable to the purchaser. Since the definition of consumer covers such person, it means that the seller is liable to a third party.

  1. Establishment of the Council (parishad)

Under the Consumer Rights Protection Act, 2009, there are Councils at two levels:

  1. National level (National Consumer Rights Protection Council)
  2. District level (District Consumer Rights Protection Committee) The National Consumer Rights Protection Council may, for purpose of preservation and protection of consumer rights, make appropriate regulations, undertake research, create awareness, and advise the government on policy relating to consumer protection, as well as monitor the activities of the Directorate of Consumer Protection. On the other hand, the District Committees are to implement the rules and regulations adopted by the National Council.

iii. Establishment of Directorate on Consumer Rights

Under the Consumer Rights Protection Act, 2009, a Directorate of consumer rights is established in Dhaka. In fact, the principal responsibility to implement this Act rests on this Directorate. The Directorate is headed by a Director General (DG) and to assist him, there will be such staffs as may be necessary. A person may submit complaint of any activity violating consumer rights to the DG or any person authorized by him. To make a complaint to Magistrate or to file a criminal case requires the permission of the DG or of person authorized by him on this behalf. The DG holds power to investigate, to search or to issue summons and warrant. Besides this, he may also issue directives to close any shop or business enterprise engaged in activities that violate consumer rights.

  1. Filing of Complaint

Under the CRPA 2009, no person can file a complaint directly at the Magistrate’s court. A person can file a complaint based on the anti-consumer activities to the Director General of the National Consumer Rights Protection Directorate or any other person authorized by him within 30 days of the complained cause of action. Then, within 90 days of the complaint received, the charge has to be filed to the Magistrate court with the approval of the DG.

  1. Concurrent Remedy

Apart from filing a criminal case with the Magistrate court, civil remedy can be sought at the civil courts. The civil court is endowed with the jurisdiction to grant proper compensation which would not go beyond the fivefold amount of the actual damage.

  1. Act not in derogation of any other law

The provisions of the CRPA[18] shall be in addition to and not in derogation of the provisions of any other law for the time being in force. It would be operative as an additional apparatus with the other laws having consumer implications. This law does not supersede other laws, rather it is said to be applied as a complementary law on the same point. If an anti-consumer activity falls within the ambit of some other rigorous law (for example: Special Powers Act 1974), the complainant would have the option to resort to that law.

vii. Mobile Court[19]

The mobile court has jurisdiction to try offences relating to activities that violate consumer rights. An executive Magistrate runs the mobile court. Besides, the DG has also the same power as an Executive Magistrate to run the mobile court. He has jurisdiction all over Bangladesh. A Magistrate may at once recognize an offence under this Act, if committed in front of him and punish him, on the basis of his confession, with an imprisonment for a period of maximum two years. However, if the offence is serious in nature; he will take steps to file a criminal case in the criminal court.

4.14 Conclusion

Consumer Protection Law in the Bangladesh should be the national special law which specifically protects the interests and safety of end-user using the products or services provided by business operators. Everybody may use or buy any goods peacefully. Our Government should take an action for the consumer rights. In a word, consumer means a individual who buys service from market for solely his personal use or family use. Consumer rights indicate the duty and responsibility of both manufacturing company and government authority to provide the standard and healthy service to the public.[20]

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[1] Dr. Nasrin Lubna, Consumer Rights in Bangladesh: Legal Status and Protection modalities (Institution Of Bangladesh Studies ,343,071,Luc)

[2] Md Sahidur  Rahman,AabdallaH Al Faruque & Shameema Ferdausy , Consumer Protection  Movement In Bangladesh;

[3] Mizanur  Rahman consumer protection law & Swedish approach (Dhaka; Prudential Publications 2000) P.1

[4] http://www.umn.eduhumanarts/links/consprotect/html21

[5] Avtar  Singh, Law of Consumers Protection Principle &  Practice 3rd   (Lucknow, Eastan Book Company)

[6] Section 06: The Merchandise Act 1889

[7] A.B.M mofijul Islam Patwari , Protection of Consumers In Bangladesh :Law and Practice

[8] Import & Export Act 1950

[9] The Daily Star (Dhaka) Oct 31, 2004

[10] Articles 18-25 of Bangladsh Constitution

[11] Article 15 ,18 of Bangladesh Constitution

[12] [ sections 264-267, 272-276, 478-483]

[13] Section 5(a), 5(b), 5(c)

[14] Zahirul Haque ; The Bangladesh Penal Code ,1860 4th ed. (Dhaka ;2001)

[15] Caveat emptor…section 16, Sale of Goods Act 1930

[16] Shamikshon  (Dhaka) a weekly Magazine in Bengali, 7th april 1992

[17] Mohiuddin Farooque and S. Rizwana Hasan, Laws Regulatory Environment In Bangladesh. (Dhaka,Dec 1996) P.108

[18] Consumer Rights Protection Act 2009

[19] Daily Ittefaq (Dhaka) 12 july 2005

[20] ‘’Heart and Kidney disease result of adulterated food”  Prof,  A.B.H. Faroque, Chairman of Pharmaceutical Technology Department ,Dhaka University, 2005 in daily star publication ,25 july 2004

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