BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

                                                   Dated this the 19^th September 2016

                                                       PRESENT

SMT. C.V.SHOBHA          :  HONBLE PRESIDENT

SMT.LAVANYA M. RAI    :   HONBLE MEMBER

COMPLAINT NO.367/2014 

(Admitted on 12.09.2014)

1. Shivanand M,

S/o Pentappa M,

Stenographer,

Udupi District Consumer

Disputes Redressal Forum,

#76 Badagubettu,

Near DianaTheatre,

Udupi 576101.

                                                      …….. COMPLAINANT 

(Advocate for the Complainant: In person)

          VERSUS 

1. Big Bazar (Future Value Retail Ltd.)

TMA Pai Hospital,

Near Taluk Office,

Udupi  576101.

2. ITC Limited,

Plot No.1, Sector 11,

IIE, Ranipur, Haridwar,

Uttarakhand  249403.

3. JCCL Limited,

Dokiparru 522438,

Guntur District,

Andhra Pradesh,

4. ITC Limited,

Mapura, Baddi,

Solan,

Himachal Pradesh 174101.

5. Desai Brothers Ltd,

1436, Kasab Peth,

Pune 411011.                                           

                                                   …….OPPOSITE PARTIES

(Advocate for the Opposite Party No.1: In person)

(Advocate for the opposite Parties No.2 and 4: AKB)

(Advocate for the opposite parties No.3 and 5: Ex-parte)

ORDER DELIVERED BY HON’BLE MEMBER

SMT. LAVANYA M.RAI:

          The complaint is filed Under Section 12 of the Consumer Protection Act alleging unfair trade practice against the Opposite parties claiming certain reliefs.

1.      Brief facts of the  case are as under:

The complainant submits that, he had purchased several items from opposite party No.1. on 31.08.2012 by pay a sum of Rs.1,597/ vide Receipt No.0010939. Out of the items purchased one soap item named Vivel Luxury Crème with Olive Butter was picked by him, seeing the caption Vivel, see the world contest and its worth Rs.100/ and the said soaps manufactured by Opposite parties No.2 to 4.  On the very next day complainant had opened the soap and found a card of Vivel see the world contest wherein the Unique code shown as GP6AJ6 to participate in the contest Vivel see the world contest and get a chance to win 10 International Holidays (Switzerland, France, Italy) and 100 Indian Holidays for a family of 4, assured prize on Participation. The complainant further submits that while going to the terms and conditions he found that the offer is valid in the whole of India and contest is open from 01.02.2012 to 30.06.2012.  After expiry of the validity date the said product is still in the market and thereby committed unfair trade practice and committed deficiency in service.

The complainant submitted that on verifying the receipt it also found that the product of Mothers Recipe Pickle Net weight 500 gm, worth Rs.100/ is being charged twice, whereas the Opposite Party No 1 has displayed an advertisement as Buy 1 and Get 1 free  near the said product section. Hence the above complainant filed Under section 12 of the Consumer Protection Act 1986 ( herein after referred to as the act) seeking direction from this Forum to the Opposite parties to pay compensation of Rs.35,200/

II.      Version notice served to the Opposite Party by RPAD. Opposite Party No.1 appeared as person and Opposite parties 2 and 4 appeared through their counsel.  Despite of serving notice to the opposite parties 3 and 5 not appeared nor represented the case hence placed ex parte. The Opposite parties 1, 2 and 4 filed version denied the contention raised in the complaint. Opposite party No.1 stated that the complainant has been charged twice the product of Mother Recipe Pickle net weight 500 gm by over charged there by committed unfair trade practice.  The Opposite party No.1 further submits that the allegation made by the complainant with respect to purchase Vivel soap is not come under the purview  the Consumer as defined in the Consumer Protection Act.  The Opposite party No.1 submitted that two times billing for 2 bottles of Mother s Recipe, he would have contacted the Opposite party No.1 and pointed out the mistake there itself would have refunded the price of the second bottle. Which proves that the complainant harass the opposite party No.1 and extract money on baseless allegations and prays for dismissal.  

On the other hand opposite parties No. 2 and 4 filed version stated that the complainant purchased on 31.08.2012 the opposite party No.2 received notice from this Forum only in the month of October 2014.  There was no averments made in the complaint about any attempt by the complainant to communicate with the opposite party No.2.  Opposite party No.2 further submitted that as per the averments made in the complaint one more vivel soap was attached with the pack of four vivel soaps.  The complainant got the fifth vivel soap free.  The complainant does not state that the complainant had any issue with the soaps that he purchased.  Opposite party No.2 had offered for sale a vivel soap package bearing See the world Contest logo after the offer period expired.  Which appears from the averments made in the complaint and the   documents that the complainant got the soap which contained the Vivle See the world logo free.  There is no complaint of any defect in the soap packs so purchased.  Hence opposite party No.2 was not liable for any defect in the goods.

The opposite party No.2 further submitted that the said scheme was widely published and many people participated.  The winners got the benefit of the scheme.  There was no reason or occasion for the complainant not to know about the said scheme.  It is denied that the complainant purchased any soaps only after seeing the caption as alleged.  As per the averments made in the complaint, the said caption was not in the pack of 4 soaps purchased by the complainant the caption was found only in the fifth soap which apparently is given free.  Hence prays for dismiss the case.       

3.       In view of the above said facts, the points now that arise for

our consideration in this case are as under:

1. Whether the Complainant proves that the opposite parties have committed deficiency in service?
2. If so, whether the Complainant is entitled for the reliefs claimed?
3. What order?

4.     In support of the complaint, Sri. Shivananda M(CW1) filed affidavit reiterating what has been stated in the complaint.   Ex C1 and C2 were marked for the Complainant and also Mo.1 marked as listed in the annexure.   One Mr. Anil Garg (RW1), of the Opposite Party No. 2 filed counter affidavit and answered the interrogatories served on him.  The Opposite Parties 2 and 4 filed notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                                 Point No.(i): Affirmative.

                                 Point No.(ii) to (iii): As per the final order.  

                                                                     Reasons

6. Point No. (i) to (iii) : In order to substantiate the allegation in the complaint the complainant filed evidence as well as documents in support of this case. The documents produced by the complainant marked as Ex C1 and C2. On careful scrutiny of the documents placed by the complainant i.e. Ex C1 bill issued by the Opposite party No.1 which clearly showed that Mother Recipe Pickle billed twice which proves the negligence on the part of opposite party No.1.  The Opposite party No.1 stated their version if the complainant had been really affected by the two times billing for 2 bottles of Mother’s Recipe he would contacted the 1^st opposite party but we are not agree in contention of the opposite party No.1 because once billing over some of the Bazars not entertaining the customers.  They are following their own rules and regulations which do not understand to the customers.  Hence this version of opposite party No.1 is not true.  Further the complainant opened the attached free soap which contained the card of Vivel see the world Contest.  Ex C2 is that even after the expiry of the validity date of the contest, the said produce is still in the market and there by the opposite parties No.1 to 4 have resorted to the unfair trade practice. It is true that, as per the averments made in the complaint one more vivel soap was attached with the fact of four (4) vivel soaps.  If the complainant had paid for 4 vivel soaps he duly received it.   There is no complaint on any defect in the soap packs so purchased.  The receipt (Exbit C1) filed along with complaint shows that the complainant purchased 4 vivel soaps only. Thus the fifth vivel soap free.  Furthermore the complaint does not state that the complainant had any issue with the soaps that he purchased.  The opposite parties 2 & 4 cited a report 1993 (2) CPJ 155 National Commission which clearly held that it cannot be said that the complainant was a consumer who had hired any service for consideration and hence has no right to get redressal under the Consumer protection Act 1986 because the opposite party No.2 had offered for sale a vivel soap package bearing see the world contest logo after the offer period expired.  This logo contained free soap.  It is the gross negligence on the part of the opposite party No.1 even after the expiry of the validity date the product is still in the market.  It is the bounden duty of the opposite party No.1 to remove the said items after expiry date.  Hence opposite party No.1 only held responsibility on the same.  Further mere proof of unfair trade practice is not enough for claim or award of relief unless causing of loss is also established but present case has not been established hence opposite parties 2 to 5 are not the responsible or not committed any deficiency in service on their part.

     Further we also notice that the complainant not given any notice to the opposite party No.1 and opposite party No.1 not known about this facts.  They are known about only after the notice received from the District Forum the above said fact is considerable the complainant not even narrated the facts before the opposite party No.1 In view of the above discussion, we are of the considered opinion that the opposite party No.1 is hereby directed to pay  Rs.5,000/ as compensation to the complainant along with interest at the rate of 6% per annum from the date of notice received from this FORA till the date of payment.  Further Rs.1,000/ awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of receipt of this order.

     The complainant not established the case against opposite parties No.2 to 5.  Hence dismissed.

6.      In the result, we pass the following:

ORDER

The complaint is allowed.  The opposite party No.1 is hereby directed to pay Rs.5,000/ (Rupees Five thousand only) as compensation to the complainant along with interest at the rate of 6% per annum from the date of notice till the date of payment.

Further Rs.1,000/ (Rupees One thousand only) awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of receipt of this order.

      The case against opposite parties No.2 to 5 is hereby    dismissed.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the   19^th day of September 2016.)                            

PRESIDENT                                         MEMBER

 (SMT. C.V. SHOBHA)                      (SMT. LAVANYA M.RAI)

D.K. District Consumer Forum                D.K. District Consumer Forum

  Mangalore.                                          Mangalore.      

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Shivanand M  

Documents produced on behalf of the Complainant:

Ex C1 Retail Invoice of Big Bazaar (Future Value Retail Ltd.)

Ex C2 Vivel See the World Contest Card having unique code as GP6Aj6.

Material object produced by the Complainant:  

M.O.No.1 Scratch card and Vivel soap sealed cover containing  four soap boxes.

Witnesses examined on behalf of the Opposite Parties:

RW1 Anil Garg of the Opposite Party No.2.

Documents produced on behalf of the Opposite Parties: 

Nil

Dated: 19.09.2016                                     MEMBER