BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 29^th November 2016

PRESENT

        SMT. C.V. SHOBHA             :   HONBLE PRESIDENT 

        SMT.LAVANYA M. RAI        :   HONBLE MEMBER                                        

                                                     ORDER IN

   C.C. No 23/2015

                                                        (Admitted on 09.01.2015)

Neela S.Rao,

W/o B.Sudhakar Rao,

Advocate,

Door No.6.12/14,

Anugraha, Vivekananda Nagar,

Kodikal, Mangalore 575006.

                                                                …… COMPLAINANT

(Advocate for complainant – Sri. PRB)           

                                                                                          VERSUS

1. M/s Hindustan Unilever Limited,

            Regd. office: Unilever House,

           B.D.Sawant Marg,

          Chakala

          Andheri (East),

          Mumbai 400099

          Rep. by its managing Director.

2. M/s S.R. Shine,

           Poojary Complex,

          Urwa Store,

          Mangalore 575006

         D.K. District,        

          Rep.by its proprietor/Managing Partner.

                                                                              ….........Opposite Parties

(Advocate for Opposite Party No.1.Sri: AKU)

(Advocate for Opposite Party No.2.Sri: MNA)

ORDER DELIVERED BY HONBLE PRESIDENT 

SMT. C.V. SHOBHA

1. 1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service as against the opposite parties claiming certain reliefs.

       2. The complainant prays for the order for reliefs directing the opposite party No.2 to refund the cost of the lipstick charges of Rs.525/ , interest at the rate of 15% p.a. on Rs.525/ from 07.11.2014 onwards to be quantified, and cost of the litigation incurred till date and to be incurred  Rs. 5,000/ towards cost of this proceeding,  compensation of Rs. 75,000/ towards mental agony caused to the complainant.

II         The brief facts of the case are as under:

That the complainant named above who one of the leading lawyers at Mangalore on 07.11.2014 is purchased a bag and a lipstick from Opposite Party No.2 who is the authorized dealer / agent of Opposite Party No.1 for which Opposite Party No.2 issued tax invoice bill of sale dated 07.11.2014 for Rs. 910/ and the lipstick purchased by the complainant from Opposite Party No.2 on 07.11.2014 is produced along with the complaint. That immediately after receiving the tax invoice for Rs. 910/ from Opposite Party No.2 , the complainant noticed the maximum retail price(MRP) is not indicated for which Opposite Party No.2 has charged her Rs. 525/ and she informed Opposite Party No.2 that selling the lipstick in question to her without indicating therein MRP on it, amounts to unfair trade practice and Opposite Party No.2 bluntly refused to take back the said lipstick by assigning the reason that goods once sold cannot be taken back.  That aggrieved by the failure on the part of Opposite Party No.2 to take back the lipstick in question from the complainant, in spite of the specific request and convincing reasons put forth by her being a legal practitioner who is well conversant with the provisions of consumer law, the complainant got issued legal notice dated 13.11.2014 through her counsel to both the Opposite Parties calling upon them to take back the lipstick which was without indicating MRP on the lipstick sold to the complainant and to refund to her a sum of Rs.525/ being the amount of lipstick paid by her with interest at 15% p.a. on  Rs.525/ from 07.11.2014 onwards along with a compensation of Rs. 75,000/ for the mental stress/tension and untold sufferings undergone by her , besides monetary loss within 15 days of receipt of the notice etc. That failure on the part of Opposite Party No.2 to take back the lipstick sold to the complainant by violating the statutory provisions as to mentioning of MRP on the lipstick sold to her has resulted in great mental stress/tension and untold sufferings on the complainant besides monetary loss.  The complainant is very much hurt and terribly upset on account of the shabby treatment meted out of her by Opposite Party No.2 as to the gross violation of the law of land committed by it and thereby harassing and humiliating her. The Opposite Party has rendered deficiency in their service towards the complainant.  Hence, the above complaint.

III .Version Notice served to the opposite party No.1 by RPAD and filed their version. It is submitted that all the averments and allegations in the complaint except those which are specifically admitted here under are deemed to be denied by this Opposite Party.          The averment in Para 4 that the Opposite Party No.2 was selling the Lipstick on which MRP was not mentioned and the same amounted to violation of MRTP Act is denied.  It is submitted that the MRTP Act is no longer in existence and it is replaced by competition Act, 2002.  It is further submitted that lipstick being a packaged commodity comes within the purview of the The Legal metrology Act’ and The Legal Metrology (Packaged Commodities) rules.  The preamble of the Act reads as An act to establish and enforce standards of weights and measures, regulate trade and commerce in weights, measures and other goods which are sold or distributed by weight, measure or number and for matters connected therewith or incidental thereto.  On this short ground itself this complaint ought to be dismissed.  Copy of the notification or repeal of the MRTP Act is herewith annexed.  It is submitted that under Rule 26 of the Legal Metrology (packaged commodities0 Rules, 2011, exemption is provided, from marking all mandatory rules, if the packages net weight or measure of the commodity is ten gram or ten milliliter or less, if sold by weight or measure.  It is submitted that all the Lipsticks manufactured sold by this Opposite Party is less thatn 10 ml, hence falls under Rule 26 and this Opposite Party is not aware of the variant/lipstick brand the complainant alleges to have violated MRTP Act. The averment made in Para 9 that the Opposite Party No.2 is selling the lipstick to the complainant which does not bear mandatory MRP on it and failure on the part of the Opposite Party No.1 to take back the said lipstick amounts to violation of MRTP Act, it amounts to unfair trade practice, it also amounts to deficiency of service etc, are all hereby denied.  Version notice also served to the Opposite Party No.2 by RPAD and filed their version.  Whatever the Contention taken by Opposite Party No.1, the same contention is also taken by the Opposite Party No.2.  Whatever the allegation made by the complainant in the complaint is denied by the Opposite Party No.1 and 2. In support of the complainant One Smt. Neela S. Rao (CW1) the complainant filed affidavit reiterating what has been stated in the complaint, answered the interrogatories and produced the document same has been marked as Ex C1 to C4. One Mr.H.Narayan Hegde (RW1) of Opposite Party No.1 and Mr.A.Santhosh Kumar, (RW2) of opposite party No.2 filed their counter affidavit and answered the interrogatories and not produced any documents.

IV.    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 there is a deficiency of service on the part of Opposite Parties as per the complaint?
2. If so, for what quantum and from whom the complainant in entitled?
3. What order? 

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

 Point No. (i) and (ii):  As per Negative

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

REASONS

V. POINTS No. (i) and (ii)

          The complainant purchased a bag and lipstick from Opposite Party No.2 on 07.11.2014, who is the authorized dealer/agent of Opposite Party No.1 for which the Opposite Party No.2 issued tax invoice/bill of sale dated 07.11.2014 for Rs. 910/ the said original tax invoice issued by Opposite Party No.2 as per Ex C1 and the Lipstick material produced by complainant as per MO 1  Further, after receiving the tax invoice for Rs.910/ from Opposite Party No.2, the complainant noticed the maximum retail price (MRP) is not indicated for which Opposite Party No.2 has charged her Rs.525/  Hence, selling the material lipstick to her without indicating MRP on it, amounts to unfair trade practice of Opposite Party No.2 and  Opposite Party No.2 bluntly refused to take back the said lipstick by assigning the reason that goods once sold cannot be taken back it amounts to deficiency of service.  Hence the complainant, filed this complainant against Opposite Parties. On the contrary, the Opposite Party No.1 and 2 filed their detailed version and also submitted that the complainant in her entire complaint has not mentioned the brand of the lipstick allegedly purchased by her.  Therefore it is not admitted that the lipstick is manufactured by Opposite Party No.1.  Further it is also submitted that the MRTP Act is no longer in existence and it is replaced by competition Act 2002.  The material lipstick being a packaged commodity comes with in the preview of the The Legal Metrology Act and the legal metrology (Packaged Commodities) Rules.  An act to establish and enforce standards of weights and measures, regulate trade and commence in weights, measures and other goods which are sold or distributed by weight, measure or number and for matter connected therewith or Incidental thereto.  And further Rule 26 of the legal metrology (packaged commodities) Rule 2011 exemption is provided, from marketing all mandatory rules, if the packages net weight or measure of the commodity is ten gram or ten milliliters or less, if sold by weight or measures.  As such in the present case the Opposite Party No.2 sold the material lipstick is less than 10 ml.  Hence falls under the Rule 26 of legal metrology Rule 2011. Further, Opposite Party No.1 submits that the complainant has no complaint with regard to the quality of the product or on deficiency of service from Opposite Parties.  Hence there is no cause of action arose against Opposite Parties.  Therefore, there is no deficiency of service on the part of Opposite Parties and Opposite Parties are not violate the trade practice. Hence we perused the documents evidence and notes of arguments of both the sides we came to know it is clear cut case of the Opposite Party that there was no any material in the matter, to show either deficiency or untrade practice against them by the complainant and they have proved the contention which taken by them to the extent that said material object MO 1 found in the case is of only the net volume containing 3.6 ml.  So that the same as per The provision of 26 of MRTP Act as found in Chapter 5 under Exemptions, in respect of certain packages: Nothing contained in these rules shall apply to any package containing a commodity if The net weight or measure of the commodity is ten gram or ten millilitre or less, if sold by weight or measure; Provided that the declaration in respect of maximum retail price and net quantity shall be declared on packages containing 10g to 20g or 10ml to 20ml.

2. Any package containing fast food items packed by restaurant or hotel and the like;
3. It contains scheduled formulations and non-scheduled formulations covered under the drugs (price control0 order, 1995 made under section 3 of the essential commodities Act, 1955 (10 of 1955);
4. Agricultural form produces in packages of above 50 kg.

Further under notification dated 24.10.2011 of (Depart of Consumer Affairs) ministry of Consumer Affairs Food and Public Distribution, the Gazette of India Extra ordinary part II Section 3(i) where under GSR 784(E) In exercise of the powers conferred by sub section(1) read with clause (j) of sub section (2) of section 52 of the Legal Metrology Act, 2009 (1 of 2010), the Central Government hereby makes the following rules further to amend the legal Metrology (packaged commodities) Rules, 2011 namely

1. (1). These rules may be called as the legal metrology (packaged commodities) Third Amendment Rules, 2011,

(2). They shall come into force with effect from 1^st July, 2012.

         2. In the legal metrology (packaged commodities) Rules, 2011 (hereinafter referred to as the principal rules),

a) The Proviso to the Rule 5 shall be omitted.

b) In clause (d), sub rule (1) third proviso shall be omitted.

c) In rule 12, for sub rule (6), the following sub rule shall be substituted, namely:

(6) the declaration of the quantity under these rules shall not contain any word or expression, or any sort whatsoever, which tends to create or is likely to create an exaggerated, misleading or inadequate expression as to the quantity of the commodity contained in the package.

d) In rule 19, for sub rule (7), the following sub rule shall be substituted, namely.

(7) The requirement of mandatory declarations on packages shall be ensured either at the factory level and at the depot of the factory.

e) In rule 19, for sub rule (8), the following sub rule shall be substituted, namely.

(8) For non compliance of the provisions of this rule, action may be taken after seizing five representative samples of the packages as evidence and the rest of the packages may be released only after compliance is completed by the manufacturer or the packer, as the case may be

f) In rule 26, in clause (a), the proviso shall be omitted.

1. The net weight or measure of the commodity is ten gram or ten millilitre or less, if sold by weight or measure Provided that the declaration in respect of maximum retail price and net quantity shall be declared on packages containing 10g to 20g or 10ml to 20ml.

Therefore we adopt the above proviso to the facts and circumstances of the case and come to proper conclusion that once when the above product under MO1 of the complainant is of the weight of net volume 3.6 ml only has been duly omitted from the MRTP Act as well as legal metrology (packaged commodities Rule 2011.  So that the conclusive opinion in the case on hand by us that the complainant miserably fails in proving her case against the Opposite Party on any angle.  Therefore the above point No.1 and 2 have been answered by us in the negative, as there was no any deficiency of service on the part of any of the Opposite Party to the complainant. Ruling S.C. of India Consumer unity and trust V/s CMD reported in 1991 VOL I CPJ 1 SC.  In the said judgment the Hon’ble S.C. of India has held that when there is no deficiency of service or negligence on the part of the appellant then any loss etc.  Which is caused to the consumer the appellant cannot be held liable for the same.

Point No.iii: In the result, we pass the following:

ORDER

The above complaint is here by dismissed.  No order as to cost.

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

(Page No.1 to 10 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 29^th day of November 2016.)

      MEMBER                                      PRESIDENT

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

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

  Mangalore.                                         Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant: 

CW1: Smt. Neela S. Rao                     

Documents marked on behalf of the Complainant:

Ex C1: Original Tax invoice/bill of sale dated 07.11.2014 for Rs.910/ issued by Opposite Party No.2.

Ex C2: Office copy of the legal notice dated 13.11.2014.

Ex C3: Original Postal Acknowledgment Card duly signed by Opposite Party No.1

Ex-C4: Original Postal Acknowledgment Card duly signed by Opposite Party No.2.

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr.H.Narayan Hegde,

RW2: Mr.A.Santhosh Kumar,

Documents produced on behalf of the Opposite Parties:

 Nil 

Dated: 29.11.2016                                 PRESIDENT