Product Liability Policy In Malaysia

Product Liability Policy In Malaysia from SIMON POON AGENCY

By: SIMON POON AGENCY  19-10-2010
Keywords: General Insurance, Automobile Insurance, Insurance Agency

In accordance with the Section 23 of The Consumer Protection Act 599 of Malaysia Law for the prohibition against unsafe goods (1) The Minister may, on the recommendation of the Controller, by order published in the Gazette, declare any goods or any class of goods to be prohibited goods where the goods or goods of that class have caused or are likely to cause injury to any person or property or is otherwise unsafe. (2) An order made under subsection (1) may require the supplier, in such manner and within such period as may be specified in the order, and at the supplier's own expense, to do any or all of the following: (a) recall the prohibited goods; (b) stop the supply of, or the offer to supply, the prohibited goods; (c) stop the advertisement of the prohibited goods; (d) disclose to the public any information relating to (i) the characteristics of the prohibited goods which render them unsafe; (ii) the circumstances in which use of the prohibited goods are unsafe; (iii) any other matter relating to the prohibited goods or the use of the prohibited goods as may be specified; (e) repair or replace the prohibited goods; (f) refund to any person to whom the prohibited goods were supplied the price paid or the value of the consideration given for the prohibited goods or any lesser amount as may be reasonable having regard to the use that that person has had of the prohibited goods. (3) Where an order is made under subsection (1), the Controller shall, by notice to the supplier, require the supplier to take any or all of the actions referred to in the order. (4) A notice under subsection (3) need not be provided directly to the supplier and may be provided by general methods, including placing notices in the public news media, as the Controller thinks fit, provided that the notice is clear and reasonable. (5) The supplier shall comply with all the requirements of any order and notice made under this section. (6) Further and without prejudice to the foregoing, where an order under subsection (1) is in effect (a) no person shall supply, or offer to or advertise for supply, any prohibited goods; and (b) no supplier shall - (i) where the notice identifies a defect in, or a dangerous characteristic of, the prohibited goods, supply goods of a kind to which the order relates which contain the defect or have the characteristic; (ii) in any other case, supply goods of a kind to which the order relates. Section 24. Prohibition of importation of goods or services The importation of any goods or services or any class of goods or services which do not comply with the provisions of this Part is prohibited. (i) the characteristics of the prohibited goods which render them unsafe; (ii) the circumstances in which use of the prohibited goods are unsafe; (iii) any other matter relating to the prohibited goods or the use of the prohibited goods as may be specified; (e) repair or replace the prohibited goods; (f) refund to any person to whom the prohibited goods were supplied the price paid or the value of the consideration given for the prohibited goods or any lesser amount as may be reasonable having regard to the use that that person has had of the prohibited goods. (3) Where an order is made under subsection (1), the Controller shall, by notice to the supplier, require the supplier to take any or all of the actions referred to in the order. (4) A notice under subsection (3) need not be provided directly to the supplier and may be provided by general methods, including placing notices in the public news media, as the Controller thinks fit, provided that the notice is clear and reasonable. (5) The supplier shall comply with all the requirements of any order and notice made under this section. (6) Further and without prejudice to the foregoing, where an order under subsection (1) is in effect -
(a) no person shall supply, or offer to or advertise for supply, any prohibited goods; and (b) no supplier shall - (i) where the notice identifies a defect in, or a dangerous characteristic of, the prohibited goods, supply goods of a kind to which the order relates which contain the defect or have the characteristic; or (ii) in any other case, supply goods of a kind to which the order relates. PART IV - OFFENSES, DEFENSES AND REMEDIES IN RELATION TO PARTS II AND III Section 25. Contravention of Parts II and III to be an offense (1) Any person who contravenes any of the provisions of Parts II and III commits an offense and shall on conviction be liable - (a) if such person is a body corporate, to a fine not exceeding two hundred and fifty thousand ringgit, and for a second or subsequent offense, to a fine not exceeding five hundred thousand ringgit; (b) if such person is not a body corporate, to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both, and for a second or subsequent offense, to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding six years or to both. (2) In the case of a continuing offense, the offender shall, in addition to the penalties under subsection (1), be liable to a fine not exceeding one thousand ringgit for each day or part of a day during which the offense continues after conviction. Section 26. Offense caused by act or default of another person Where an offense under Part II or III is due to the act or default of another person, that other person shall be deemed to have committed of the offense and may be charged with and convicted of the offense whether or not proceedings are taken against the first-mentioned person. Section 27. Defense of mistake, accident, etc. In any proceedings for an offense under section 25, it shall be a defense for the person charged to prove (a) that the contravention was due to - (i) a reasonable mistake on his part; (ii) reasonable reliance on information supplied to him; (iii) the act or default of another person; (iv) an accident; or (v) a cause beyond his control; and (b) that he took reasonable precautions and exercised all due diligence to avoid such contravention by himself or by any person under his control. Section 28. Defense of innocent publication of advertisement Where an offense under section 25 is committed by the publication of an advertisement, it shall be a defense in any proceedings for the offense for the person charged to prove that - (a) his business is that of publishing or arranging for the publication of advertisements; and (b) he received the advertisement or the information contained in the advertisement, as the case may be, for publication in the ordinary course of business; and (c) he did not know and had no reason to suspect that the publication of the advertisement would constitute an offense under section 25. Section 29. Power of court to grant ancillary relief (1) Where, in any proceedings under this Part, or on the application of any person, the court finds that such person, whether or not he is a party to the proceedings, has suffered or is likely to suffer loss or damage by the conduct of any other person that constitutes or would constitute - (a) a contravention of; (b) aiding, abetting, counseling or procuring the contravention of; (c) inducing by threats, promises or otherwise the contravention of; (d) being in any way knowingly concerned in or party to, whether directly or indirectly, the contravention of; (e) conspiring with any other person in the contravention of, any of the provisions of Part II or III, the court may, without prejudice to any other relief it may grant, make any or all of the orders referred to in subsection (2). (2) For the purposes of this section, the court may make the following orders: (a) an order declaring - (i) the whole or any part of a contract made between the person who suffered or is likely to suffer the loss or damage and the person who engaged in the conduct referred to in subsection (1); or (ii) the whole or any part of a collateral arrangement relating to such a contract, to be void and, if the court thinks fit, to be void ab initio or at all times on and after such date, before the date on which the order is made, as may be specified in the order; (b) an order varying the contract or arrangement in such manner as may be specified in the order and, if the court thinks fit, declaring the contract or arrangement to have had effect as so varied on and after such date, before the date on which the order is made, as may be specified in the order; (c) an order directing the person who engaged in the conduct referred to in subsection (1) - (i) to refund the money or return the property; (ii) to pay the amount of the loss or damage; (iii) at the person's own expense, to repair or provide parts for goods that have been supplied by him; (iv) at the person's own expense, to supply specified services, to the person who suffered, or is likely to suffer, the loss or damage, as the case may be. (3) An order under paragraph (2)(a) or (b) shall not prevent proceedings from being instituted or maintained under this Part. (4) In an application for an order against a person under this section, a finding of fact made in proceedings for an offense under section 25, being proceedings in which that person was found to have engaged in conduct of the kind referred to in subsection (1), shall be prima facie evidence of that fact and the finding may be proved by the production of a document under the seal of the court in which the finding was made. PART V - GUARANTEES IN RESPECT OF SUPPLY OF GOODS Section 30. Application The implied guarantees under this Part shall apply whether or not the goods are supplied in connection with services. Section 31. Implied guarantee as to title (1) Subject to subsection (5), the following guarantees shall be implied where goods are supplied to a consumer: (a) that the supplier has a right to sell the goods; (b) that the goods are free from any undisclosed security; and (c) that the consumer has a right to quiet possession of the goods, except in so far as that right is varied by: (i) a term of the agreement for supply where that agreement is a hire-purchase agreement within the meaning of the Hire-Purchase Act 1967 [Act 212]; (ii) a disclosed security; or (iii) a term of the agreement for supply. (2) Where sub-paragraphs (1)(c)(ii) and (iii) apply, the supplier shall first orally advise the consumer as to the way in which his right to quiet possession of the goods may be varied. (3) The advice given by the supplier under subsection (2) shall be as may be sufficient to enable a reasonable consumer to understand the general nature and effect of the variation. (4) Where a consumer has received oral advice under subsection (2) - (a) the supplier shall give to the consumer a written copy of the security or agreement for supply or a written copy of the part thereof which provides for the variation as explained to the consumer under subsection (2); (b) the consumer shall acknowledge receipt thereof in writing. (5) Where the goods are only hired or leased - (a) paragraphs (1)(a) and (b) shall not apply; and (b) paragraph (1)(c) shall confer a right to quiet possession of the goods only for the period of the hire or lease. (6) For the purposes of this section -"right to sell" means a right to dispose of the ownership of the goods to the consumer at the time when that ownership is to pass; "undisclosed security" means any security that is -(a) not disclosed to the consumer in writing before he agrees to the supply; and (b) not created by or with his express consent. Section 32. Implied guarantee as to acceptable quality (1) Where goods are supplied to a consumer there shall be implied a guarantee that the goods are of acceptable quality. (2) For the purposes of subsection (1), goods shall be deemed to be of acceptable quality - (a) if they are - (i) fit for all the purposes for which goods of the type in question are commonly supplied; (ii) acceptable in appearance and finish; (iii) free from minor defects; (iv) safe; and (v) durable; and (b) a reasonable consumer fully acquainted with the state and condition of the goods, including any hidden defects, would regard the goods as acceptable having regard to - (i) the nature of the goods; (ii) the price; (iii) any statements made about the goods on any packaging or label on the goods; (iv) any representation made about the goods by the supplier or the manufacturer; and (v) all other relevant circumstances of the supply of the goods. (3) Where any defects in the goods have been specifically drawn to the consumer's attention before he agrees to the supply, then, the goods shall not be deemed to have failed to comply with the implied guarantee as to acceptable quality by reason only of those defects. (4) Where goods are displayed for sale or hire, the defects that are to be treated as having been specifically drawn to the consumer's attention for the purposes of subsection (3) shall be defects disclosed on a written notice displayed with the goods. (5) Goods shall not be deemed to have failed to comply with the implied guarantee as to acceptable quality if - (a) the goods have been used in a manner or to an extent which is inconsistent with the manner or extent of use that a reasonable consumer would expect to obtain from the goods; and (b) the goods would have complied with the implied guarantee as to acceptable quality if they had not been used in that manner or to that extent. (6) A reference in subsections (3) and (4) to a defect is a reference to any failure of the goods to comply with the implied guarantee as to acceptable quality.

Keywords: Automobile Insurance, Burglary Insurance, Commercial Comprehensive Insurance, Commercial General Liability, Equipment All Risk, General Insurance, Insurance Agency, Property Insurance, Retail Insurance, Small Medium Industrial Insurance,