Consumers often get tempted when they see the word “sale” or “offer” outside any shop, there are various different types of promotional sale, one of which is ‘Buy 1 Get 1 Offer’, where the consumer has to purchase a product and will get a similar or related product for free, this type of promotional sale is widely used all around the world. But often the consumers get attracted to such offers and become a victim of unfair trade practices. They may not get the free product at all, or the free product would be a damaged or faulty product, and the consumers don’t understand what to do, if they can replace the defective product for new one or repair the defect because it was bought for free.
“Who is Not a Consumer”, any person who purchases goods for free or for resale.[i]
“Defect” means any fault, imperfection or shortcoming which has to be maintained according to any law for the time being or according to the claims of the trader.[ii]
“Unfair Trade Practices”, means adopting unfair or deceptive trade practices for promoting sale, use or supply of goods.[iii]
Solution to the question:
The above question involves two different questions in itself, one, what can be done when a person buys a product for free and finds it to be defective? and the other is, what to do when a defective product is obtained for free under a promotional sale such as Buy 1 Get 1? In case of the former, the person has no remedy for the defective product as he’s not a consumer according to the definition of consumer under the Consumer Protection Act, 1986. Unless of course, if the seller agrees to replace or repair the product on his own, but under the law, if the seller denies to replace or repair, the buyer would not have any remedy but to repair it at his own cost.
In case of later, what seller did would be a practice of unfair method of trade, which is punishable under Consumer Protection Act, 1986. The seller is prohibited to practice such unfair methods, and in case of any injury or damage to the consumer due to such unfair practices of the seller, the seller would be liable to pay compensation, accordingly.[iv] For such remedy, the consumer needs to file a complaint in the consumer dispute redressal against the seller for unfair trade practice.
Unfair trade practices:
Such unfair trade practices include:
- Goods and services not being of stated standard, quality or grade.
- Second hand, renovated goods being sold as new ones.
- Goods and service not rendering the claimed use, usefulness or benefit.
- Products / services not possessing the claimed warranty / guarantee.
- The price of product or service to be misleading.
- False and misleading advertisement of selling at bargain price.
- Offering gifts, prizes, etc. to lure customers with no intention of providing them.
- Selling goods which do not fall within the safety standards set up by competent authority.
- Hoarding or destroying goods with the intention of raising the cost of these or similar goods manufactured in greater number so as to manipulate higher prices.
- Manufacturing or offering spurious goods or adopting deceptive practices in the provision of services.[v]
The parties are, the affected party i.e. the one who receives such defective goods and the other is the opposite party, the provider of such goods, which includes individuals, firm, Hindu undivided family and company.[vi] The party who files the complaint i.e., the affected party includes, the person to whom such product was sold or by any recognized consumer association or by the Central or State Government, one or more consumers, where there are numerous consumers having same interest, in case of death of a consumer, his legal heir or representative.[vii]
Cases and illustration:
A consumer purchases three shirts in an offer of buy 2 get 1 free from a retail shop, on reaching back home he tried on the shirts and found that the shirt given as the free shirt in the sale was torn at the arm pit part of the shirt. The consumer went back to the retail shop and asked for an exchange, the retailer denied the request saying that it was not torn when sold and would have torn because of the negligence of the consumer. The consumer filed a complaint in the district consumer dispute redressal requesting the court to ask the retailer to exchange the defective shirt with a new one. The retailer argued with the same contention, saying that it was due to the negligence of the consumer. Consumer requested the court for testing the shirt’s standard, when tested, it was found that the quality of the shirt given as free was not same as the shirt given for money. The court decided in favor of the consumer and held that the retailer must not use unfair trade practices to sell away defective products.
In accordance to the above information, we can conclude that if a product is bought for free i.e. without consideration, or given away for free, the person who received such product shall not have any remedy in case of defect in such free good. But, if the product is received for free as a promotional offer to persuade the consumers to buy the main product, and if such free product is found to be defective, then the seller has practiced unfair trade, for which the consumer has the right to sue the seller in consumer court for redressal.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
[ii] Section 2(1)(f) of Consumer Protection Act, 2019.
[iv] Section 6 of Consumer Protection Act, 2019.