Unfair Trade Practices

The Government of India understood the need to protect the consumers from being cheated by suppliers. Several
laws have been enacted for this purpose. The Indian Contract Act, the Prevention of Food Adulteration Act, the
Dangerous Drugs Act, the Sales of Goods Act, the Bureau of Indian Standards Act, etc., are remedial acts for
aggrieved consumers. However, these laws involve a lengthy legal process which is very expensive and time-
consuming because the consumer has to initiate action by way of a civil suit. The Consumer Protection Act, 1986
was enacted to provide quicker and simpler access to redressal of consumer grievances. The Act provided
machinery to aggrieved consumers. But the consumers have undergone a drastic transformation since the enactment
of the Consumer Protection Act, 1986. Therefore, it has become inescapable to replace the Act with CPA,2019 to
address the emerging vulnerabilities of the consumer. The Consumer Protection Act, 2019 was enacted replacing
the old CPA 1986. The CPA 2019 establishes an executive agency known as the Central Consumer Protection
Authority. The task of prevention of or acting against unfair trade practices is vested in it. The term “unfair trade
practice” describes the use of deceptive, fraudulent, or unethical methods to gain business advantage or to cause
injury to a consumer. Unfair trade practices are considered unlawful under the Consumer Protection Act.
The purpose of the law is to ensure that consumers have the opportunity to make informed, rational decisions about
the goods and services they purchase. Unfair trade practices include false representation of a good or service,
targeting vulnerable populations, false advertising, tied selling, false free prize or gift offers, false or deceptive
pricing, and non-compliance with manufacturing standards. Alternative names for unfair trade practices are
“deceptive trade practices” or “unfair business practices.”

Unfair Trade Practice In India

The Constitution of India, in its essay in building up a just society, has mandated the State to direct its policy
towards securing that end. Articles 38 and 39 of the Constitution of India, which are part of the Directive Principles
of State Policy, mandate the state to direct its policy towards securing: that the ownership and control of material
resources of the community are so distributed as to best sub serve the common good; and that the operation of the
economic system does not result in concentration of wealth and means of production to the common detriment.

Accordingly, after independence, the Indian Government assumed increased responsibility for the overall
development of the country. Government policies were framed with the aim of achieving a socialistic pattern of
society that promoted equitable distribution of wealth and economic power. However, even as the economy grew
over the years after independence, there was little evidence of the intended trickle-down. Concerned with this, the
Government appointed a Committee on Distribution of Income and Levels of Living (Mahalanobis Committee) in
October 1960. The Committee noted that big business houses were emerging because of the “planned economy”
model practised by the Government and recommended looking at industrial structure, and whether there was
concentration. Subsequently, the Government appointed the Monopolies Inquiry Commission (MIC) in April 1964,
which reported that there was high concentration of economic power in over 85 percent of industrial items in India.

1. Definition of Unfair Trade Practice

UTPs encompass a broad array of torts, all of which involve economic injury brought on by deceptive or wrongful
conduct. The legal theories that can be asserted include claims such as trade secret misappropriation, unfair
competition, false advertising, palming-off, dilution and disparagement. UTPs can arise in any line of business and
frequently appear in connection with the more traditional intellectual property claims of patent, trademark and
copyright infringement. Specific types of UTPs prohibited in domestic law depend on the law of a particular
country. The World Bank (WB) and the Organisation for Economic Cooperation and Development (OECD) Model
Law, for example, lists the following trade practices to be unfair
Cases on unfair trade practices under MRTP Act
In re Lakhanpal National Ltd. v. MRTP Commission, it was alleged before the Commission that:
1. the appellant company was manufacturing NOVINO (dry cell) batteries in collaboration with M/s. Mitsushita
Electric Industrial Company of Japan, and not with National Panasonic of Japan using their techniques, as
advertised by it: and

2. the representation that NOVINO batteries are manufactured in joint venture or in collaboration with National
Panasonic is false and misleading.

In re Glaxo Ltd and Capsulation Services Ltd., the allegation was that Glaxo marketed a drug ‘phexin’,
manufactured by capsulation, showing logo of Glaxo prominently on the packing strip and name of Capsulation
written in small print, thereby giving the impression that Phexin is being manufactured by Glaxo. In the course of
the inquiry it was found:

Who is a Consumer

Who is a consumer?- Find the answer to this question and access a vast question bank that is customised for
students.

Definition of Consumer

The end-user of any product or service is known as the consumer. A consumer is someone who consumes a product
or service without the consent of the buyer who purchased it.

A customer is any individual or group of individuals who, in addition to the buyer of the product or services, uses
the product with his or her consent. To put it another way, the consumer is the one who uses the goods or services.

Types of Consumer

When a company sells a service or a product, it must first identify and classify the various categories of customers
before marketing to them.

1. Commercial Consumer: Consumers who buy in huge amounts but are unsure whether or not they require the
product are known as commercial consumers. Additionally, they occasionally correlate unique needs with their
purchasing orders.
2. Discretionary Spending Consumers: These individuals have distinct purchasing tendencies. They usually buy a lot of
clothing and technology devices.
3. Extroverted Consumers: These individuals favour distinctive companies and become devoted customers after they
have gained the brand’s confidence.
4. Inferior Goods Consumer: Consumers that buy inferior items have a low income and purchase things at low costs.

A consumer is somebody who decides to choose whether or not to buy something at a store or is affected by
advertisements and marketing.

When someone walks to the store to purchase clothing, a toy, a beverage, or whatever else, they are making a
consumer decision.

Any individual who purchases things for a price that has been either promised to be paid or partly paid & partly
promised is referred to as a consumer.
(28) “motor vehicle” or “vehicle” means any mechanically propelled vehicle adapted for use upon roads
whether the power of propulsion is transmitted thereto from an external or internal source and includes a chassis to
which a body has not been attached and a trailer; but does not include a vehicle running upon fixed rails or a vehicle
of a special type adapted for use only in a factory or in any other enclosed premises or a vehicle having less than
four wheels fitted with engine capacity of not exceeding 4[twenty-five cubic centimetres]; 1[twenty-five cubic
centimetres];"

In India, the term "motor vehicle" is defined under the Motor Vehicles Act, 1988. According to this legislation, a
motor vehicle is any mechanically propelled vehicle adapted for use upon roads. This includes vehicles such as cars,
motorcycles, scooters, buses, trucks, and other similar vehicles that are powered by an internal combustion engine
or electric motor.

The Motor Vehicles Act provides regulations and guidelines for the registration, licensing, and operation of motor
vehicles in India. It covers various aspects, including road safety, traffic rules, and the responsibilities of vehicle
owners and drivers. The definition of a motor vehicle is crucial in determining the applicability of these regulations
to different types of vehicles used on Indian roads.

Introduction

It is often seen that one wants to protect one’s body and property, whether movable or immovable. People usually
seem anxious as to their person or property being vulnerable to negative elements, who are willing to
misappropriate and exploit their wealth with a Mala Fide intention. This apprehension of large sections is what is
required to be dealt with the iron hands of the law.

The law takes care of the acts which are to be recuperated with compensation or punishment. These acts can lie
from a mere intentional touch to one’s person with an evil intention of intrusion into one’s property without
assigning any reason for the action.

The law is often applied and has evolved to strike a delicate balance between the private rights to the exclusion of
others and the socially valuable public and private interests that are sometimes served by permitting unauthorized
instances of access. Therefore, it becomes extremely necessary to identify the precise problem and its solution.

Public interest often trumps the private interest and is widely recognized by law to be the distinctive exception to
the owner’s “Right to exclude.” Trespass is a varied topic involving both civil and criminal elements. What
distinguishes criminal trespass from civil trespass is that in the former, the entry should be with intent to commit an
offence or to intimidate, insult or annoy the person in possession of the property[1].

Trespass is both a civil and criminal wrong because it can cause injury, i.e., violation of legal rights as well as
damage to one’s person and property substantially if a physical attack takes place.

Trespass law is commonly presented as a relatively straightforward doctrine that protects landowners against
intrusions by opportunistic trespassers

Meaning and Interpretation

Trespass can be said to be an action exceeding the limit carved by the law. It is an intentionally directed,
unreasonable interference with one’s person and property. The word ‘intention’ here implies committing the wrong
voluntarily. Trespass allegation can be leveled if the interference is with one’s and third person’s body and private
property. It is to be kept in mind that intention forms the essential component of trespass. Unreasonable behavior is
triggered by the mala Fides and ulterior intention to harass another.
Types of Trespass

Trespass Against Person

It is the causing of apprehension of unreasonable interference with one’s person and body as well as a third person and
includes usage of force causing damage and impairment in the body. The trespasser, with an ulterior intention,
transgresses the right of another and makes an alteration in it with the objective to cause wrongful loss or wrongful
gain as the case may be. It is considered as intentional even if the wrongdoer did not know that the property
belonged to another.

Assault: It is the causing of unreasonable apprehension of body injury and damage in the mind of another person
and usually a prelude to a battery. It can be given effect in a way that would make certain actions and indications as
suggestive of assault by another. It can be both direct and indirect. It can be carried out by the person himself or
through a third person.

Here, an important factor of foreseeability causing apprehension is required as it is essential that one is able to
conceive after seeing something that it is causing unreasonable fear. Section 351 of Indian Penal Code defines
assault[2].

Essentials of assault include:

 Intent
 Apparent ability to carry out the purpose
 Apprehension
 Knowledge of threat

An example of foreseeability in trespass: A man directing a gun and about to trigger it, behind a person is not
foreseeable to the person. This can’t be said to be an assault as there is no apprehension in the mind of that person
that somebody is doing such an act which would instill fear in him.

Battery: The use of force on the person of another without lawful justification. Battery consists of touching another
person hostilely or against his will directly or indirectly, however, slightly. Direct force can be like slapping a
person whereas indirect force is like setting a dog behind a person or spitting on a person. Battery corresponds to
‘use of criminal force’ according to Section 350 of the Indian Penal Code[3]. What is necessary is that the wrongful
act must involve physical contact.

Essentials of battery include:

 Direct or indirect physical contact without lawful justification

 Use of force
 It must be voluntary

Accidental touch or push in the market is not wrongful and does not constitute battery.

False Imprisonment: When someone’s way is restricted unlawfully from all possible directions so as to prevent
him/her from moving in a direction for some period, however short, it is called false imprisonment. In the Indian
Penal Code, it is defined as wrongful confinement.

Article 22 of the Indian Constitution provides for protection against unlawful arrest and casts an obligation upon
the state to follow due procedure while carrying out arrest related activities[4]. Section 43, CrPC provides for arrest
by a private person if the offender is a proclaimed habitual offender and is alleged to be liable for a cognizable and
non-bailable offence.

Essentials: Complete restraint of liberty of person and unlawful restriction

Defence against trespass to body[5]–

1. Consent of Plaintiff: When plaintiff consented with the defendant on the specific act then defendant can’t be said to
be trespassing if there is a mutual understanding between the parties for the act.
2. Contributory negligence: When there is a negligence of plaintiff included in the act, then defendant’s liability can be
mitigated to the extent and compromise can be arrived at or liability can be divided.
3. Self-defence: A person, to protect himself from an unruly element or any other such person or incidents, can
trespass on the property to preclude the act from consummation. But, proportionality and probability should be kept
in mind while using the property of the plaintiff to intrude and so it is to be proved by the defendant that there was
no other option with the defendant other than to intrude in the property of plaintiff.
4. Statutory authority: Authorities compelled by the law to carry out search and seizures and cases where consent is
taken to conduct a bodily search would not be construed as a trespass on the body of a person. Entry in public places
and private property used for a commercial purpose is not trespass considering the societal and public interest in
mind.
5. Preservation of public peace

Trespass Against Property

Trespass against movable property like goods[6]

It is the taking wrongfully or forcefully interfering with the goods of another. It differs from trespass to land in one
important aspect that wrongful intention or negligence is not necessary for trespass to goods. A challenge to
ownership of goods amounts to conversion which is different from trespass to goods, which can be elucidated by an
example of the damage of goods given by the plaintiff in a cloak room of railways but personnel there instead of
giving it, threw it and damaged it.