BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR
C.C NO- 30/2019
Present- Sri Dipak Kumar Mahapatra, President,
Smt. Smita Tripathy, Member (W).
Bighneswar Kumar Shroff,aged about 35 years,
At-Sunaripara,Barabazaar,,
P.O-Khetrajpur,Dist-Sambalpur,Odisha. ………Complainant
Vrs.
- M/S Anad Super Bazar,
Main Road,Budharaja,P.S-Ainthapali,
P.O- Budharaja,Dist-Sambalpur,
-
- The CEO,
-
Hiranandani Garden,Powai,Mumbai,400076.……….Opp. Parties
For the Complainant:-Nemo
For the O.P-1:-Sri A.K.Sharma,Advocate and Associates
For the O.P-2:-Sri.S.K.Mishra,Advocate and Associates.
DATE OF HEARING :25.01.2021, DATE OF ORDER : 08.02.2021
Smt. Smita Tripathy, Member (W)-Brief facts of the case is that the Complainant has purchased a Colgate Swarna Ved Shakti Toothpaste of 100gms from the O.P-1 on payment of Rs.55/- including VAT. The MRP of the said toothpaste was written on the cover as Rs.46/-. But the O.P-1 has charged excess amount than the MRP which is illegal and also an unfair trade practice. Again the O.P-1 charged Rs.4/- for the poly bag having an endorsement its’ brand name as Anand Super Bazaar on the bag which is not justified. The Complainant became surprised to see that the same product by the manufacturer are being available in the Market less than the MRP reflected (Rs.44 to Rs.46)on the Cover/package having the same batch no. and product . Then the Complainant visited the O.P-1 and narrated all the problems but the O.P-1 did not respond to him. The O.P-2 is made a party in this case as the O.P-1 is selling the product manufactured by the O.P-2 at a higher price fixed by the O.P-2 and he must sell it as per the MRP fixed by the O.P-2. The O.P-1 is running a MALL and gathered a lot of money by means of unfair trade practice like this hence he should be penalised.
But according to the O.P-2, the product purchased by the Complainant belongs to the O.P-2 is not established as there is no batch number and date of manufacturing and other description is absent and also the cash memo is not filed with the complaint petition. The case must be filed in the Civil Court instead of filling this in the DCDRC, which have jurisdiction to try this case. Again, as per the O.P-2, there is no any link between the Complainant and the O.P-2 hence it is not maintainable but the Distributer should be made a party to this case. The Complainant does not come in the purview of Consumer as he has not purchased anything from the O.P-2 so he has no right to redressal against the O.P-2. Again it is impossible for a manufacturer to ensure that no product is being sold in higher price than the MRP as alleged in the complaint petition and it is impracticable and improbable on the part of the O.P-2 to control the Retailers to sell its product within MRP printed on the product.
The O.P-1, despite of service of notice did not bother to appear before this Forum thus challenging the allegations made by the Complainant. So taking it as an urgent matter this Forum has rightly decided to dispose the case as well setting the O.P-1 is made set ex-parte. Hence hearing conducted exparte under “Rule-6 of Order-9 of Civil Procedure Code”.
Points for consideration:-
1. Whether the Consumer complaint can be maintained with regard to declaration of MRP on a packaged commodity?
2. Whether two MRPs are permissible under law?
3. Whether there is deficiency in service on the part of opposite parties?
4. Whether the Complainant has to pay for the carry bag?
5. Whether the Complainant is entitled to get relief as prayed for?
From the above discussion we inferred that the main allegation of complainant is that Colgate Swarna Ved Shakti toothpaste was sold at Rs.55/- by the O.P-1 as per the MRP printed in the above product. The same Colgate Swarna Ved Shakti toothpaste was also have another MRP quoted in that cover as Rs.46/-.The Complainant has not alleged any defect in the contents of the toothpaste but the allegation is only with regard to declaration of two MRPs on the same product i.e on the cover of Colgate Swarna Ved Shakti toothpaste. The complainant alleged that there cannot be any dual pricing; the complaint is maintainable under Consumer Protection Act. According to the Act, a trader or the service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price (a) fixed by or under any law for the time being in force; (b) displayed on the goods or any package containing such goods; (c) displayed on the price list exhibited by him by or under any law for the time being in force; (d) agreed between the parties. Selling goods in excess of price fixed under law will be deemed to be shortcomings in service. That dual pricing is not permitted under any law and as per the Legal Metrology (Packaged Commodities) Rules 2011 that no retail dealer or other person including manufacturer, packer, importer and whole-sale dealer shall make any sale of any commodity in packed form at a price exceeding the retail sale price thereof and shall not declare different maximum retail prices on an identical pre-packaged commodity by adopting restrictive trade practices or unfair trade practices. But according to the amended on 23 October, 2017-"Unless otherwise specifically provided under any other law, no manufacturer or packer or importer shall declare different maximum retail prices on an identical pre-packaged commodity by adopting restrictive trade practices or unfair trade practices as defined under
The National Consumer Disputes Redressal Commission (NCDRC) had also ruled that there cannot be two MRPs, except in accordance with the law. In view of the above legal and rule position the opposite party cannot be said that it is entitled to charge more than the MRP rate fixed outside the premier locations. Also the Hon’ble Supreme court on 4th January 2005 in the case of “Pallavi Refractories & Others Vs- M/s. Singareni Collieries co. Ltd” [] held as follows: There is no such law that a particular commodity cannot have a dual fixation of price. But the new -2018 has rightly withdrawn the practice of dual pricing. Further the packet contains two MRPs simultaneously which confusing for the consumer as “which one is to be accepted”? Here also comes the theory of Product Liability u/s-2(34) of the Consumer Protection Act-2019 which defines the apportionment of liability jointly and severally on the manufacturer and the seller or retailer or dealer on account of involving in selling and distributing the defective products or causing deficiency in services .
Again the O.P-1 has taken Rs.4/- towards the charges of Poly Bag which is an unfair trade practice adopted by the O.P-1. As per Rule-10 of “The Plastic Waste (Management and Handling) Rules, 2011”, no carry bags were to be made available free of cost by retailers to consumers but thereafter, in the year 2016, the aforesaid Rules were amended vide notification dated 18.03.2016 to be read as Plastic Waste (Management and Handling) Rules, 2016. The Rule-15 of Plastic Waste (Management and Handling) Rules, 2016 was omitted vide subsequent Notification dated 27.03.2018 and as such, the O.P-1cannot take shelter of the said rule. Since the mandate for retailers to charge for plastic carry bags has been omitted in March 2018, therefore, its contention that it could charge for paper carry bags is totally against law and has no legs to stand. The said carry bag held by the Complainant is a printed carry bag on both sides, which has a prominent display of the advertisement of the O.P-1 and is thus apparently serving as an advertisement for it, whenever the said bag is carried by the Consumer. In this manner, the Complainant and other gullible consumers like him has certainly been taken for a ride by the Opposite Party for advertising its name. This matter has been well settled in the case of “Westside, A Unit Of Trent Limited vs. Sapna Vasudev” decided by State Consumer Disputes Redressal Commission, Chandigarh, on 8 April, 2019. Also reliance can be placed on the judgments in the case of Bata India Limited vs. Dinesh Parshad Raturi on 22 July, 2019 by State Consumer Disputes Redressal Commission, Chandigarh. Hence the O.P-1can be said to have adopted unfair trade practice. So we order as under:-
ORDER
The Complaint petition is allowed. The O.P-1 is directed to Swarna Ved Shakti Toothpaste and an amount of Rs.4/- (Rupees Four)wrongly charged by the O.P-1 for the Poly Bag besides payment of Rs.5,000/- (Rupees Five Thousand)to the Complainant towards compensation for mental and physical harassment and Rs.2,000/- (Rupees Two Thousand)towards litigation expenses. Further the O.P-1 & 2 are jointly and severally directed to pay Rs.3,000/- (Rupees Three Thousand)only as compensation towards inconvenience made to the Complainant by printing double MRPs on the same product . All the orders are to be complied within 30 (Thirty ) days of receipt of this copy of order failing which the O.Ps are liable to pay penal interest of 9% per annum on the above amounts.
Office is directed to supply the free copies of the order to the parties receiving acknowledgement of the delivery of thereof.
Order pronounced in the open court today i.e. 8th day of February, 2021 under my hand and seal of this Commission.
I agree,
-sd/-(08.02.20201 -sd/-(08.02.2021)
Sri. D.K. Mohaptra Smt. S.Tripathy
PRESIDENT MEMBER(W)
Dictated and Corrected
by me.
-sd/-(08.02.2021)
Smt. S.Tripathy
MEMBER(W)
