Punjab

StateCommission

A/11/288

Hindustan Unilever Ltd. - Complainant(s)

Versus

Baldev Singh - Opp.Party(s)

Ashim Aggarwal

05 Jan 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,  PUNJAB    SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                                     

(1)                                  First Appeal No.288 of 2011.

 

 

                                                          Date of Institution:    10.02.2011.

                                                          Date of Decision:     05.01.2015.

 

 

1.       Hindustan Unilever Limited, Hindustan Lever House, 165/166,    Backbay Reclamation, Mumbai (through its Authorized           Representative)

 

                                                          …..Appellant/OP-1.

         

                                      Versus

 

1.       Baldev Singh S/o Harbhajan Singh, B-21, 7512/53, New Amar    Nagar, Street No.10, Backside, ATI College, near Kartar Chowk,   Ludhiana.

 

                                                          ….Respondent/Complainant.

 

2.       Partap Karyana Store, Gurpal Nagar (Main Market), Backside ATI,      Ludhiana.

 

                                                          .Proforma Respondent/OP-2

 

Present:-

 

          For the appellant             :         Sh. Ashim Aggarwal, Advocate.

          For respondent No.1        :         Sh. Munish Goel, Advocate.

          For respondent No.2        :         None.

         

AND

 

 

(2)                                                     First Appeal No.798 of 2011.

 

 

                                                          Date of Institution:    19.05.2011.

                                                          Date of Decision:      05.01.2015.

 

Baldev Singh S/o Harbhajan Singh, B-21, 7512/53, New Amar Nagar, Street No.10, Backside, ATI College, near Kartar Chowk, Ludhiana.

 

                                                          ….Appellant/Complainant

 

                                      Versus

 

1.       Hindustan Unilever Limited, 165/166, Backbay Reclamation,      Mumbai-4000020 (through its Authorized Representative).

 

2.       Partap Karyana Store, Gurpal Nagar (Main Market), Backside ATI,      Ludhiana, through Authorized Signatory.

 

 

                                                                    ….Respondents/OPs.

 

First Appeals against order dated 12.01.2011 passed by the District Consumer Disputes Redressal Forum, Ludhiana.

 

Present:-

 

          For the appellant             :         Sh. Munish Goel, Advocate.

          For respondent No.1        :         Sh. Ashim Aggarwal, Advocate.

          For respondent No.2        :         None.

 

 

Quorum:-

 

                    Shri Baldev Singh Sekhon, Presiding Member.

                    Shri Vinod Kumar Gupta, Member.  

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

BALDEV SINGH SEKHON, PRESIDING MEMBER:-

                                     

                  

                   This order will dispose of two appeals i.e. F.A. No.288 of 2011 (Hindustan Unilever Limited Vs. Baldev Singh & Anr.) and F.A. No.798 of 2011 (Baldev Singh Vs. Hindustan Unilever Limited & Anr.), as these are directed against the same impugned order dated 12.01.2011 passed by the District Consumer Disputes Redressal Forum, Ludhiana (in short, “the District Forum”), vide which the complaint filed by the respondent no.1/complainant (in F.A. No.288 of 2011) was allowed and OP-1 was directed to pay exemplary compensation of Rs.50,000/- as they might have collected huge amount on account of such mal practice resorted to by them. Out of the awarded compensation, a sum of Rs.40,000/- was ordered to be credited to Legal Aid Fund Account of the District Forum and the remaining Rs.10,000/- was to be paid to the complainant. The complainant was also held entitled for legal expenses of Rs.4,000/-.

2.           Briefly stated, the facts of the case are that the complainant visited OP-2 for purchase of detergent powder and OP-2 disclosed the scheme of free CIF 120 ml. worth Rs.27/- with Surf Excel Quick Wash pouch of 2 kgs., manufactured by OP-1. Complainant purchased one such pouch from OP-2, who issued receipt dated 10.01.2010 for the same. After coming out of the premise of OP-2, when he opened the pouch and he found two Surf Excel Quick Wash packets of 1 kg. each in the pouch purchased by him. However, he felt that packets were underweight. He again visited OP-2 and asked him to weigh the packets in his presence. On checking, weight of one packet of detergent powder was 1 kg., whereas the other packet was found having weight of 893.5 gm. against the declared weight of 1 kg each. He immediately lodged his protest with OP-2 for taking legal action because of charging a fixed amount for underweight package. He further informed the local officials of OP-1, who asked him to keep the said packet as it is in his custody and informed him, but nobody from OP-1 visited him, except that a letter dated 16.02.2010 was received by him that its representative would visit him from OP-1. It was pleaded that OP-1 is responsible for adopting unfair trade practice for selling goods/material under packed conditions containing less weight than disclosed on the package. It was further pleaded that the date of packing on the pouch was 12/2009, whereas on the inside labels of the individual packets, same was mentioned as 11.09/19/40/803 and 11.09/19/53/803. The MRP printed on each packet was unreadable and it seemed that the OPs deliberately showed excess price as Rs.280/- on the pouch of 2 kgs. It was further pleaded that the OPs illegally collected Crores of rupees by mis-representing the date of packing and its cost which amountd to unfair trade practice by mis-leading the public, including the complainant. Alleging deficiency in service and unfair trade practice on the part of the OPs,  the complainant filed the complaint before the District Forum, seeking following directions:-

i)        OP-1 be  held responsible for deficiency in service and for adopting unfair trade practice;

ii)       OP-1 be directed to take back such pouches of 2 kgs. pouch from the market without further delay and to stop selling underweight packets  in the market at higher rates, as disclosed on the pouches; and

iii)      It be penalized to the tune of Rs.5 lacs  for the mal-practices adopted by it.

3.           Upon notice, OP-1 filed its written reply, pleading therein that the present complaint was false, frivolous, misconceived and vexatious and has been filed with sole intention of harassing it. It was a gross abuse of the process of law and the same is liable to be dismissed with costs. It was pleaded that OP-1 was based at Mumbai, as such, the District Forum at Ludhiana had no territorial jurisdiction to entertain the present matter, as no cause of action has arisen at Ludhiana. It was further pleaded that OP-1 is a responsible world class company and has a great commitment to its customers in terms of quality and it has enforced strict quality control checks which eliminate any kind of defective or underweight products entering the market for sale to customers. It was further pleaded that special statute like “Standards of Weights and Measures Act” (in short, “SWM Act”)   have been enacted for dealing and processing complaints of the sort made by the complainant. As such, he cannot be allowed to bypass the provisions of special laws and file a complaint before the District Forum.
4.           It was further stated that without prejudice to any of the allegations in the complaint, the OP No.1, in the interest of justice and with a view to retain its valuable customer, is always ready and willing not only to replace the produce but is also offering complementary packs of the products to the consumer, without going into the merits of the case and without ascertaining the fact that whether the product is genuine or not or whether the same was underweight or not. It was denied that the packets purchased by the complainant were underweight for want of proper inspection. It was denied that OP-1 is the manufacturer of the alleged packets of underweight Surf Excel detergent. It is not clear as to where and how the packets were allegedly weighed, as there was no weighment slip attached with the complaint.  It was also denied if any unfair trade practice has been adopted by OP-1.   Denying all other allegations, dismissal of the complaint was prayed.
5.           OP No.2 did not appear before the District Forum, despite having been served and hence it was proceeded against exparte.
6.           Parties led their evidence by way of affidavits and documents before the District Forum, which after going through the same, allowed the complaint, in aforesaid terms.
7.           Aggrieved by this order, the OP-1 has come up in this appeal i.e. F.A. No.288 of 2011 (Hindustan Unilever Limited Vs. Baldev Singh & Anr.), on the grounds that the special statute like “Standards of Weights and Measures Act” have been enacted for dealing and processing complaints of the sort made by the complainant. As such, complainant cannot be allowed to bypass the provisions of special Act. No receipt/bill or proof of purchase qua the impugned packet has been attached with the complaint, mentioning the batch number etc.  In the absence of proper inspection, it cannot be established that the alleged packets were underweight. It was not clear as to how the same was weighed and whether the machine on which, it was weighed was correct or not or whether the same were duly certified by Legal Meteorological Department, as being correct.
8.            It was further submitted that the packets have been allegedly bought by the complainant on 10.01.2010 and the complaint was filed on 12.03.2010, as such, for two months, the packets were in the custody of the complainant. It was not known in what conditions the same were kept and whether the same were tampered with. As such, sending the same now for testing would be futile and would cause prejudice to the appellant. Learned District Forum appointed the Inspector, Weights and Measures, Ludhiana as Local Commissioner (LC) and ordered him to weigh both the packets. The said LC, vide report dated 23.08.2010, submitted that one packet weighed 1.028 kgs., while the other weighed 902 gms. The objection was taken by the appellant to the said report on the ground that no notice was received by the appellant and the packet was weighed in its absence. The objections of the appellant were allowed by the District Forum. However, the LC was again directed to weigh the packets in the presence of the appellant. Once again, no notice was received and the LC re-submitted the earlier report to the District Forum. The District Forum, despite having allowed the objections to the report and having rejected the earlier report, for some strange reasons, accepted the same report  of the LC, which it had struck down earlier. As such, the entire procedure followed by the Inspector is vitiated. It is possible that the packets might be spurious, for which the OP company is not responsible.
9.           It was further submitted that the District Forum failed to appreciate that the weight of the Surf is recorded “when packed”, which is likely to undergo significant variation on account of environmental and other conditions. As such, section 39(4) of the Standard Weight & Measures (in short, “SWM”) Act provides that Central Govt. may, by rules, specify the commodities, the weight or measure of which is likely to increase or decrease beyond the prescribed tolerance limits by reasons of climatic variations and it shall be lawful for the manufacturer or packer  of the commodity “so specified”, to qualify the statement as to the net content of such commodity  by use of words “when packed”. The Inspector/LC  has not returned the findings as to whether the goods were allegedly underweight/overweight due to climatic variations, which are legally allowed. Rule 27 of the SWM Act (Packed Commodities) Rules, 1977 states as follows:-

 

          27.     Establishment of maximum permissible error on package

(1)     The maximum permissible error in relation to the commodities   specified in the first schedule shall be such as is indicated in the      corresponding entries in that schedule against the concerned           commodity and the maximum permissible error in relation to any         commodity not specified in the first schedule, shall be such as is   specified in the second schedule.

          Provided that the Director may establish the maximum permissible      error in relation to any commodity not specified in the First schedule         and on such establishment, the concerned commodity and the          maximum permissible error in relation thereto shall be deemed to           have been included in the first schedule.

2)       The Director shall cause a coordinated programme to be undertaken at such places and in such manner as he may think fit          for the establishment of the maximum permissible error in relation to    commodities referred to in sub-rule (1) or the proviso thereto.

3)       While establishing the maximum permissible error in relation to the      net quantity of commodities contained in packages, due account   shall be taken of the following causes which may lead to variation in    quality, namely:-

a)       Variations caused by unavoidable deviation in weighing, measuring     or counting the contents of individual packages that may occur in   good packaging practice;

b)       Variations caused by the ordinary and customary exposure to    conditions, such as, climate, transport, storage or the like that        normally occur in good distribution practice after the commodity is         introduced in trade or commerce; and

c)       Variations due to the nature of packaging material or container.

4)       The Director shall determine or cause to be determined in relation       to any commodity the declaration in respect of the net quantity of   which is permitted to be qualified by the words “when packed”; the          reasonable variations which may take place by reason of the     environmental conditions.

 

                   Acceptance of appeal and setting aside of the impugned order was prayed.

10.           In other appeal i.e. F.A. No.798 of 2011, complainant has sought enhancement of compensation.
11.             We have gone through the pleadings of the parties and have carefully perused the record of the District Forum.
12.           The first contention of the OPs that special statute like “Standards of Weights and Measures Act” have been enacted for dealing and processing complaints of the sort made by the complainant, as such, he cannot be allowed to bypass the provisions of special Act and file a complaint before the District Forum, is not tenable because the Consumer Protection Act, 1986 (in short “the Act”) provides for an additional remedy to the consumers against the deficiency in service and defect in goods and as per Section-3 of the Act, provisions of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Hence, the complainant was within his right to invoke the jurisdiction of the District Forum.
13.           OP-1 has further contended that no batch No. is mentioned on the receipt (Ex.C-1) produced by the complainant, as such, the same cannot be considered as its genuine product. Perusal of the label on the pouch of Surf Excel of 2 kg. (Ex.C-2) would reveal that, in fact, no batch number is mentioned on it. While on the labels of individual packets Ex.C-4 and Ex.C-5), bath number along with date of packing as well as time of packing is clearly mentioned as 30.11.09/19:40/803 and 30.11.09/19:51/803. Hence, batch number could not have been mentioned in the receipt issued by OP-2. It is further noticed that MRP is not mentioned on individual packet, while the same is mentioned as Rs.280/- on the pouch of 2 Kg. powder. OP-1 has failed to prove from record that the packets purchased by the complainant were spurious and not manufactured by it.
14.           Admittedly, the complainant purchased for Rs.280/- a packet of 2 kg. Surf Excel detergent powder from OP-2 on 10.01.2010, containing 2 packets of 1 kg each of Surf Excel Quick Wash  powder, manufactured by OP-1 along with CIF 120 ml. worth Rs.27/-. It is the specific case of the complainant that he bought this packet and noticed that one of the packets was underweight and that he immediately asked OP-1 to weigh the same and when both the packets of Surf Excel, declared to be of 1 kg. each, were weighed, the first packet was found to be of 1 kg., whereas the other packet was found weighing 893.5 gms. The complaint was contested by OP-1 and during the pendency of the complaint, District Forum appointed Inspector, Legal Meteorological (Weights & Measures), Chandigarh as Local Commission to verify the weight of the packet so purchased by the complainant. The report dated 23.08.2010 of the Local Commission (LC) has been placed on record, in which, the LC found the first packet, weighing 1.028 kg., while the other packet was found to be 902 gms. Thus, second packet was having 9.8% less contents than its declared weight. On the receipt of the said report, OP-1 raised the objection that no notice was issued by LC to it for getting the weight verified in its presence, whereupon, District Forum directed the said Inspector to weigh the packets again in the presence of OP-1 as well. Thereafter, the Inspector issued notice dated 11.11.2010 to the complainant as well as OPs No.1 & 2 to come present on 22.11.2010 at 11 A.M. in his office, but instead of sending the notice through registered post, the receipts of which have been placed on record by the Inspector, OP-1 failed to come present. Hence, the said Inspector was not in a position to weigh the packets again in the absence of OP-1. When the Inspector was directed again on the specific objection raised by OP-1 itself, it was duty bound to remain present and get the disputed packets weighed to its satisfaction. But their deliberate absence proves that it was only interested in raising the objection. It deliberately avoided witnessing the verification of exact weight by LC because, then, it would have left with no other option but to accept the report of LC which was definitely against it.  Under these circumstances, the Inspector had to keep the previously weighed and sealed packets intact, so that the same could be weighed again if insisted by OP-1. However, OP-1 did not put up any application again for the verification of the weight in its presence. Undoubtedly, Inspector, Legal Meteorological (Weights & Measures) is an authorized and competent person to check the exact weight of an item, as per provisions of SWM Rules. Thus, it is proved beyond doubt that the weight of one of the packets of Surf Excel Quick Wash sold by OP-2 and manufactured by OP-1, was less by 9.8%, which clearly establishes the deficiency in service as well as adoption of unfair trade practice, as this underweight packet was sold by OP-1 under a scheme in which a “CIF, weighing 120 ml.”, was given as a free gift.
15.           The OP has taken a specific plea that the Local Commission has not returned the findings as to whether the goods were allegedly underweight/overweight due to climatic variations, which are legally allowed. It relied upon Rule-27 of SWM (Packed Commodities) Rules, 1977, which provides that error in relation to the commodities    specified in the first schedule shall be such as is indicated in the corresponding entries in that schedule against the concerned commodity and the maximum permissible error in relation to any commodity so specified in the first schedule, shall be such as is    specified in the second schedule. It is further provided that Director may establish the maximum permissible error in relation to any such commodity not specified in the First schedule and on such establishment, the concerned commodity and the maximum permissible error in relation thereto shall be deemed to have been included in the first schedule.
16.           However, Rules-11 (2) (3) & (4)  of SWM (Packed Commodities) Rules, 1977 provide as under:-

          11. General Provisions relating to declaration of quantity:

 

(2)     Where a commodity in a package is not likely to undergo any variation in weight or measure, on account of the environmental conditions, the quantity declared on the package shall correspond to the net quantity which will be received by the consumer, and the declaration of quantity on such package shall not be qualified by the words “when packed” or the like.

(3)     Save as otherwise provided in sub-rule (4), where a commodity in package is likely to undergo variations in weight or measure on account of environmental conditions and such variation is negligible, the declaration of quantity in relation to such package shall be made after taking into account such variation so that the consumer may receive not less than the next quantity of the commodity as declared on the package, and the declaration of quantity on such package shall not also be qualified by the words “ when packed” or the like.

 

(4)     “The declaration of quantity in relation to commodities specified in       the Fourth schedule is to say that commodities which are likely to     undergo significant variation in weight or measures on account of       environmental or other conditions may be qualified by the words “when packed”.

 

17.           It is clear that the “detergent powder” Surf Excel Quick Wash is not such a commodity, which is likely to undergo significant variation in the weight on account of environmental or other conditions and for the same reason “detergent powder” is not included in the Fourth Schedule. Moreover, the weight mentioned on each packet sold by OP-2 is specified as “net weight” to be received by the consumer and the same is not qualified by the words “when packed” as is required in case of items likely to undergo such variation. No doubt, “detergent” is included in Fourth Schedule, but “detergent powder: is not mentioned therein. Thus, the provisions of Rule-27 of the SWM (Packed Commodities) Rules, 1977 for establishment of maximum permissible error, as contended by OP, are not applicable.
18.            Thus, it is proved beyond doubt that the weight of one packet of the Surf Excel Quick Wash manufactured by OP-1 was found to be 902 gms. against its declared “net weight” of 1 kg. Accordingly, the appeal filed by OP-1, being devoid of any merit, is dismissed and the impugned order of the District Forum is affirmed and upheld.
19.           However, the other appeal i.e. F.A. No.798 of 2011 (Baldev Singh Vs. Hindustan Unilever Limited & Anr.) is also dismissed, because we find no reason to enhance the compensation already awarded by the District Forum.
20.           The appellant in F.A. No.288 of 2011 has deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal. Out of this amount, a sum of Rs.14,000/- (awarded by the District Forum in favour of the complainant) be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the OP-1 and to the District Forum. Remaining amount with interest accrued thereon, if any, be remitted by the registry to the Legal Aid Fund Account of the District Forum by way of a crossed cheque/demand draft after the expiry of 45 days.
21.           Arguments in both these appeals were heard on 18.12.2014 and the order was reserved. Now the order be communicated to the parties.
22.           The appeals could not be decided within the statutory period due to heavy pendency of court cases.
23.           Copy of the order be placed in F.A. No.798 of 2011 (Baldev Singh Vs. Hindustan Unilever Limited & Anr.).

 

 

                                                                 (BALDEV SINGH SEKHON)

                                                                     PRESIDING MEMBER

                       

                                                                 (VINOD KUMAR GUPTA)

                                                                              MEMBER

 

January 05, 2015.                                                          

(Gurmeet S)