BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 339/2000 Filed on 19.06.2000

Dated : 30.06.2009

Complainant:

M. Selvamuthu @ Muthu, Saronivas, Thiruvancode P.O, Vattom, Kalkulam Taluk, Kanyakumari District, Tamil Nadu.

(By adv. G. Muraleedharan)

Opposite party:

A. Raveendran, Proprietor, A.R. Agencies, Dealer Sanitary Wares, Glazed & Floor Tiles, PVC Fittings & PVC Pipes 6/162, Kaimanam, Thiruvananthapuram-40.

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 24.12.2003, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 30.05.2009, the Forum on 30.06.2009 delivered the following:

ORDER

SMT. S.K.SREELA : MEMBER

The allegations in the complaint are the following: The complainant was a bonafide credit purchaser of sanitary items, paints and similar items from the opposite party expecting reasonable and fair standard of trade practice from the opposite party. The opposite party had made the complainant believe that the items of goods were supplied to the complainant at reasonable price rates prevailing in all similar stocks in Thiruvananthapuram. But the complainant, on comparing the prices of goods supplied by the opposite party to the complainant, found that a sum of Rs. 11,703/- has been collected in excess from him. The price variations have been noticed from the price lists of other sanitary centres. Though the complainant had demanded for deduction of excess amounts in the bills, there was no response and hence this complaint against the opposite party for unfair trade practice and deficiency in service claiming refund of excess price collected from him along with compensation and costs.

The opposite party has filed their version contending as follows: The complainant is not a consumer. The alleged excess price variations as shown in the complaint is without any merit and against the true facts of the case. This opposite party mentioned only the reasonable price in the credit bill which prevailed during the year 1998 for the items purchased by the complainant. There is no price variation as alleged by the complainant or any sort of unfair trade practice shown by this opposite party. The alleged price list produced by the complainant is of 1996 and not of 1998. The complainant purchased the materials on credit basis from this opposite party and misguided this Hon'ble Forum by producing the wholesale price list issued by the wholesale distributors at Madras in 1996 instead of 1998. The allegation that this opposite party took higher price than the wholesale price is false, incorrect and hence denied. This opposite party has never taken any excess amount as alleged by the complainant. The complainant purchased certain sanitary items from this opposite party on credit basis to the tune of Rs. 48,356/-. The complainant owe an amount of Rs. 95,000/- to this opposite party in the above and other previous transactions. The complainant paid only Rs. 20,000/- in cash and for the balance sum, a cheque bearing No. 161118 dated 30.06.1999 for an amount of Rs. 65,000/- drawn on Canara Bank, Cantonment Branch, Thiruvananthapuram was given with an assurance that the entire balance will be cleared before the date of cheque. The complainant so far not paid the said amount till this date. Thereafter even though the complainant demanded this opposite party again for goods on credit basis, this opposite party refused to give goods as there was huge arrears due from the complainant. Thereafter the relationship between the parties strained and to escape from the liability of paying the amount due to this opposite party, this false and frivolous complaint was filed before this Forum without any merit and bonafides by falsely alleging excess price variation relying on the two credit bills issued by this opposite party. In fact the purchase mentioned in the complaint was on credit and so far the said amount is not paid to this opposite party in spite of repeated demands. Moreover the alleged dispute is not a consumer dispute as contemplated under the provisions of the Consumer Protection Act as no price has been fixed by any law for the time being in force with respect to the alleged sanitary items and the price is fixed by the manufacturers depending upon the quality of the product as there are numerous varieties of product and it will vary from State to State because of the difference in sales tax and other levies, transportation expenses etc. and the question of pricing will not come under the purview of the consumer jurisdiction. Hence prays for dismissal of the complaint with costs.

An ex-parte order was passed by this Forum against which the opposite party preferred appeal. Accordingly this case has been remanded by the Hon'ble Consumer Disputes Redressal Commission for de novo hearing.

The complainant has filed affidavit and has been examined as PW1. Exts. P1 to P6 were marked on his side. The opposite party has filed affidavit and Ext. D1 has been marked on their part.

From the contentions raised, the following issues arise for consideration:-

1. Whether this complaint is maintainable before this Forum and whether this Forum has jurisdiction to try this complaint?

2. Whether there is any deficiency in service and unfair trade practice on the part of the opposite party?

3. Reliefs and costs.

Points (i) to (iii):- The main allegation of the complainant is that the complainant has noticed from the Bill No. 1831 dated 16.06.1998 for Rs. 12415/- and Bill No. 1840 dated 02.07.1998 for Rs. 35941/- issued to him by the opposite party the following unreasonable excess price variations; for “Consultation Bidot Bergandy” the price assigned is Rs. 6180/- as against the actual price for the item prevailed in similar other shops is only Rs. 3161/- the difference being Rs. 3019/-. The price assigned in the bill for consultation Bidot Pink is Rs. 3525/- as against the actual price of Rs. 1650/- in similar other shops the difference in price being Rs. 1629/-. For 'E.W.C.P. Trap' the price assigned in the bill is Rs. 1289/- as against the actual price of Rs. 960/- in similar other shops, the difference being Rs. 329/-. Again for consultation, 'Extra bergandy' the price assigned in the bill is Rs. 6080/- as against the actual price of Rs. 3039/- in similar other shops the difference being Rs. 3041/-. For consultation S. Trop Grav, pink and grey Rs. 3039/- for each is assigned as price, as against the real price of Rs. 2039/- each in other similar shops, the difference in price for the three items being Rs. 3000/-. For E.W.C white extra the price assigned is Rs. 700/- while the actual price in similar other shop is Rs. 435/- the difference being Rs. 265/-. For flush tank, the price assigned is Rs. 640/- as against Rs. 535/- and for four Nos. the difference in price is 105x4= Rs. 420/-. Hence the total sum of price variations amounted to Rs. 11703/-. The total amount of the two bills the opposite party issued to the complainant amounted to Rs. 48536/-. The complainant pleads that the price variation has been noticed from the price lists of other shops. The opposite party has vehemently contended that the alleged dispute is not a consumer dispute as contemplated under the provisions of the Consumer Protection Act as no price has been fixed by any law for the time being in force with respect to the alleged sanitary items and the price is fixed by the manufacturers depending upon the quality of the product as there are numerous varieties of product and it will vary from State to State because of the difference in sales tax and other levies, transportation expenses etc. and the question of pricing will not come under the purview of the Consumer Protection Act.

The complainant alleges that excess amount has been collected from him and for corroborating the same Exts. P3 and P4 price lists have been produced. Ext. P3 is the price list of Lavanya Sanitary Centre and Ext. P4 is that of Queen's Collection Distributors of Jaquar bath fittings and Ess Ess bath accessories. From the above, one cannot make out the Maximum Retail Price of each item mentioned therein. The prices mentioned are those provided by the respective shops. The complainant alleges that unreasonable excess price has been collected from him. But the complainant does not have a case that the opposite party has collected excess amount than the Maximum Retail Price. The complainant pleads that excess price has been collected from him and he has not specified the MRP and has failed to establish with corroborative evidence to substantiate that the opposite party has collected the price exceeding the price fixed by law or displayed on the goods or displayed on the package containing such goods from the complainant. A complaint may be made against a trader who has charged, for the goods mentioned in the complaint, a price in excess of the price-(i) fixed by or under any law for the time being in force or (ii) displayed on the goods, or (iii) displayed on any package containing such goods. Thus when there is no fixing of price of an article by law, nor a display of price on the package containing the goods or on the goods themselves, the Act does not contemplate any complaint being instituted in respect of the price charged for the article on the ground that the price charged for the article is excessive. This Forum cannot undertake an investigation of the reasonableness of the price fixation made by a manufacturer, producer or dealer. For reaching a conclusion that excess price has been collected as compared to the price of such products in the market, the product should be the same or they should be like products. A comparison of Exts. P1 & P2 and Exts. P3 & P4 would show that the products are not the same in the bills and the price lists. So the complainant has failed to make out a case that what was sold to him was exactly the same one at the same time and that the representation with regard to the price made to him was wrong in respect of the same product at the same time. The learned counsel for the opposite party had argued that Exts. P3 and P4 are the price list of the year 1996 and not that of 1998, that Ext. P3 is the wholesale distributors price list of Madras in the year 1996 and Ext. P4 is of 1996, so the allegation that the opposite party took higher price than the wholesale price is false. From the allegations in the complaint, it is evident that the complainant is questioning the pricing of the items purchased by him. The opposite party has produced the ruling of the Hon'ble National Commission reported in 1994(1) CPR P 34 that pricing of materials cannot be a subject matter of complaint before the Consumer Forum.

It is a settled position that the question of pricing cannot be gone into by the Consumer Fora constituted under the Consumer Protection Act, 1986.

In the light of the above discussions, we are of the view that, the prayer of the complainant for a direction to refund the difference in price and to pay a compensation is not sustainable and hence the complaint is dismissed.

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

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of June 2009.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

O.P. No. 339/2000

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - M. Selvamuthu

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of bill dated 16.06.1998 issued by A.R. Agencies.

P2 - Copy of bill dated 02.07.1998 issued by A.R. Agencies.

P3 - Copy of price list of Lavanya Sanitary Centre.

P4 - Jaquar bath fittings and Ess Ess bath accessories consumer price list w.e.f 15.02.1996.

P5 - Copy of advocate notice to Proprietor, A.R. Agencies dated 18.02.2000.

P6 - Postal acknowledgement card No. 2992 dated Nil.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of cheque dated 30.06.1999 issued by the complainant in favour of A.R. Agencies.

PRESIDENT