Haryana

Panchkula

CC/11/2018

RAJESH KUMAR. - Complainant(s)

Versus

BARTANIA INDUSTRIES LTD. - Opp.Party(s)

COMPLAINANT IN PERSON

02 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	11 of 2018
Date of Institution	:	23.01.2018
Date of Decision	:	02.05.2023

 

 

Rajesh Kumar s/o Sh. Kewal Kumar resident of H.No.2253/1, Pipliwala Town, Manimajra, Chandigarh(U.T.).

 

                                                                           ….Complainant

 

Versus

1.     Bartania Industries Ltd., through its Managing Director, 95 Bartania Industries Ltd., Plot No.1, Sector-1, IIE Pant Nagar, Udham Singh Nagar, Rudrapur-263153(UK)

2.     Bhawani Enterprises through its Prop. DSS No.113, Mansa Devi Complex, Sector-5, Panchkula.

                                                               ….Opposite Parties

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member

Dr. Barhm Parkash Yadav, Member.

 

       

For the Parties:   Sh.Jagjit Singh, Advocate for the complainant.  

                        OP No.1 already ex-parte vide order dated 13.04.2018.

                        Sh.Sikander Bakshi,  Advocate for OP No.2.

                       

                                        ORDER

(Satpal, President)

1.             Briefly stated, the facts, as alleged in the present complaint, are that the daughter of the complainant, aged 4 years, visited the shop of OP No.2 on 10.09.2017 and purchased two packets of Britannia biscuits i.e. one packet of Britani a Biscuit of 120 gms bearing make 50-50 MATHRI MASTI, worth Rs.25/-, bearing EMI Code no.8901063017306, Machine  Code 107A and Lot No.30Z1615 and other packet of Britannia Biscuit of 50 gms, worth Rs.10/-, bearing EMI Code No.890106301790, Machine Code 103B  and Lot No.B04171. It is stated that on checking, the validity of biscuits was found expired as the date of manufacturing on the packets was mentioned as 30.12.2016. It was also mentioned on the packets “as best before six months from the date of packing. It is stated that the validity of the biscuits had expired in the month of June, 2019 but the Ops, by selling the Britannia biscuits, after the expiry date had indulged into unfair trade practice. It is stated that the complainant after coming to know about the unfair trade practice adopted by the OP No.2 approached him with the request to replace the packets but the proprietor of OP No.2 refused to replace the same by mis-behaving and using filthy and abusing language. The complainant has been forced to run from pillar to post to get replaced the said packets but to no avail. A legal notice was also got sent on 08.11.2019 but no reply was received from the Ops. Due to the act and conduct of OPs No.1 & 2, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.

2.             Notice was issued to the OP No.1 through registered post, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OP No.1; hence, it was deemed to be served and thus, due to non appearance of OP No.1, it was proceeded ex-parte by this Commission vide its order dated 13.04.2018.

                Upon notice, the OP No.2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable; no cause of action has accrued in favour of the complainant; the complainant has no locus standi to file the present complaint. The complainant has filed a false and misleading complaint   with the averments that his daughter, aged 4 years, had visited, on 10.09.2017, to the shop of OP No.2 and purchased two packets of Britannia. It is submitted that the invoice no.20170901010021 was found belonging  to 01.09.2017 and the OP No.2, in order to verify the facts, has got cross checked its record, wherein it was found that the bill issued for the product i.e. one packet of Britani Biscuit of 120 gms, bearing make 50-50 MATHRI MASTI worth Rs.25/- bearing EMI Code no. 8901063017306, Machine  Code 107A and Lot No.30Z1615 and other packet of Britania Biscuit of 50 gms worth Rs.10/- bearing EMI Code No.890106301790, Machine Code 103B & Lot No.B04171, of 01.09.2017. It is submitted that complainant had alleged that the packets of biscuits were purchased by his daughter on 10.09.2017 by visiting the shop of OP No.2 i.e. after 9 days from the date of purchase. It is submitted that the bar code of all the products remains the same; hence, the complainant has created a false story by collecting old wrappers of expiry dated biscuits and has filed the present complaint against the OP’s in order to grab money from the OP No.2. It is submitted that the alleged biscuits purchased by 4 years girl were not consumed by any one; as such the complainant ought to have produced the packets of biscuits before the Commission for proper analysis. It is submitted that the complainant has annexed the wrappers of biscuits, which were not sold by the Ops. The complainant had never produced the alleged expired product before the forum. It is submitted that the complainant never approached the OP No.2 and the alleged incident had come into the notice of the OP No.2 when the legal notice dated 03.10.2017 was received from the complainant. It is submitted that, after serving the legal notice with the false facts, the complainant approached the OP No.2 to settle the matter in lieu of Rs.5 lacs, which was flatly refused by the OP No.2. The present complaint has been filed by the complainant just to extract money and to defame the answering OP No.2 in the eye of general public. It is submitted that the shop/store of the OP No.2 is well maintained store, wherein one person from the distributor and one person from the Britannia company(OP No.2) visits the store/shop of the answering OP  No.2 once a week, to check the product qua their validity etc. It is submitted that the damaged/expired products used to be returned to the distributor once in a month, against which the OP No.2 got the credit note of the value of replaced product and thus, it is alleged that there was no possibility of selling the packets of biscuits beyond their expiry date. On merits, it is submitted that the daughter of the complainant aged 4 years had never visited the shop of the OP No.2 to purchase two packets of biscuits as the complainant has mentioned his residence as house No.2253/1, Pipliwala Town, Manimajra, Chandigarh (U.T), whereas the answering OP no.2 has its DSS No.113, situated at Mansa Devi Complex, Sector-5, Panchkula. Further, the complainant has annexed the invoice of the biscuit wherein no date is mention and in the reply to the application for supplying the annexure i.e. the copy of bill, the complainant alleged that the invoice is of dated 01.09.2017 whereas in the complaint the complainant has mention that on 10.09.2017 his daughter purchased two packets of biscuits from the shop of OP No.2.  Hence, the allegations of the complainant are itself false as it become clear that the said invoice issued by the OP was of 01.09.2017 and therefore, the further allegations regarding the visit of daughter of the complainant in the shop of OP on 10.09.2017 is totally false. It is submitted that the complainant has annexed only the copy of bill and the empty wrappers of biscuits along with the complainant. It is stated that the complainant has annexed the wrappers of some old biscuits and filed the false complaint fraudulently by submitting false and misleading facts. Rest of the averments made by the complainant has been denied by reiterating the above mentioned submissions.  So, there is no deficiency in service on the part of the OP No.2 and prayed that the complaint of the complainant is liable to be dismissed.

3.             Replication to the written statements of the OP No.2 was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OP No.2.

4.             To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-3 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OP No.2 has tendered an affidavit as Annexure R-2/A along with documents as Annexure R-2/1 to R-2/4 and close the evidence.

                During the course of arguments, the learned counsel on behalf of the complainant has produced the packets of biscuits before the Commission and the same, after their due inspection, were returned back to the complainant.

5.             We have heard the learned counsels for complainant and OP No.2 and gone through the entire record available on file, minutely and carefully.

6.             The sole issue, that falls for consideration before the Commission, is whether the Op No.2 had sold the two packets of biscuits, manufactured by OP No.1, beyond the expiry date. The learned counsel on behalf of the complainant, during arguments reiterating the averments as made in the complaint as also in the Affidavit(Annexure C-A) of the complainant contended that the OP No.2 had sold two packets of biscuits to the daughter of the complainant on 01.10.2017 vide invoice no. 20170901010021 (Annexure C-1). It is contended that, as per packet of biscuit (Annexure C-A(colly)) bearing lot No.30Z1615, Machine code 107A, the packing  date  was 30.12.2016 and that the biscuits were to be used before 6 months from the packing date. Concluding the arguments, the learned counsel has prayed for acceptance of the complainant by granting the relief as claimed for in the complaint.

7.             The OP No.1, who is manufacturer of the product in question, has preferred not to contest the present complaint by remaining absent despite service of notice and accordingly, it was proceeded ex-parte vide order dated 13.04.2018 and thus, the assertions made by the complainant against it go unrebutted and uncontroverted.

8.             The OP No.2, while controverting and rebutting the contentions and assertions of the complainant qua sale of the packets of biscuits beyond their expiry date, has contested the complaint on several grounds. The learned counsel on behalf of the OP no.2 argued that the packets of biscuits were never submitted before the Commission so as to get their proper analysis. The learned counsel asserted that the packets of biscuits in question were not sold after the expiry date and thus, there was no deficiency and unfair trade practice on the part of OP No.2.

9.             The main thrust of the submissions made by the learned counsel on behalf of the OP No.2 may be summarized as under:-

1.     That the daughter of the complainant, aged 4 years, had never visited the shop of the OP No.2 as the address of the complainant is mentioned as house no.2253/1, Pipliwala Town, Manimajra, Chandigarh, whereas the shop of OP No.2 is situated at Mansa Devi Complex, Panchkula, having DSS no.113. It is contended that it is not believable that, a girl aged 4 years, would have come to the shop of OP No.2 at Sector-5, Mansa Devi Complex, Panchkula from her residence at Manimajra to purchase two packets of biscuits.
2.     That the alleged purchased packets of biscuits were never submitted before the Commission for their proper analysis.
3.     That the complainant has alleged that his daughter had purchased the biscuits on 10.09.2017, whereas the bills produced by him relates to 01.09.2017.
4.     That the complainant had Annexed the wrappers of some old packets of biscuits.
5.     That the stocks of biscuits, belonging to OP No.1 is/was being checked, on weekly basis in order to check the validity of the products etc. by the salesman of the distributor as well as the representative of the Britannia company i.e. OP No.1. It is vehemently argued that the old stocks i.e. the expired stocks as well as the damaged stocks were used to be returned to the distributor on monthly basis, against which the shopkeeper i.e. OP No.2 used to get credit note of the replaced product and thus, there was no possibility of any expired product and or damaged product lying in the shop of the OP No.2.

Concluding the arguments, the learned counsel has prayed for dismissal of the present complaint being false, frivolous and baseless.  

10.            The aforementioned contentions raised by the learned counsel on behalf of OP No.2 are not tenable. Admittedly, the two packets of Britannia biscuits, manufactured by OP No.1, i.e. one packet of Britannia Biscuit of 120 gms worth Rs.25/- bearing EMI Code no.8901063017306, Machine Code 107A and Lot No.30Z1615 and another packet of Britannia Biscuit of 50 gms worth Rs.10/- bearing EMI Code No.890106301790, Machine Code 103B and Lot No.B04171 were sold by OP No.2 on 01.09.2010 vide invoice no.201709010021.

11.            Evidently, the packets of biscuits, having EMI Code no. 8901063017306, Machine Code 107A, Lot no.30Z1615 on one packet and EMI Code no.890106301790, Machine Code 103B on second packet, had the date of packing as 30.12.2016 as per(Annexure C-1(colly)) whereas  the packets of biscuits were sold on 01.09.2017. It is not in dispute that the validity of the biscuits in question was six months from the date of packing. Thus, the packets of biscuits in question were sold by OP No.2 beyond the expiry date. It is immaterial as to how the daughter of the complainant, aged 4 years, had visited the shop of OP No.2 from her residence. Further, the OP No.2 also cannot be permitted to draw any kind of benefit out of the typographical error/mistake, which had occurred on the part of the complainant, while mentioning the date of purchase of biscuits as 10.09.2017 in place of 01.09.2017. Furthermore, to rebut the contentions of the OP No.2, the complainant has produced both the packets of biscuits, manufactured by OP No.1, wherein the details qua the lot number etc. were found duly matching with the lot number etc.  as mentioned on the wrappers (Annexure C-1(colly)) annexed with the complaint.                

12.            We have no doubt of any kind in any manner as to the fact that the OP No.2 had sold the  packets of biscuits in question beyond  their expiry date and thus, it had adopted unfair trade practice by selling the product to the consumer beyond the expiry date.

13.            The OP No.1, who is manufacturer of the product  in question, is also liable  for deficiency as well as adoption of unfair trade practice  as it had permitted its distributor to sell the expired product through the retailers; therefore, the OP No.1 as well as OP No.2  are liable to compensate the complainant.

14.    Adverting to the relief, it is found that the complainant has claimed a sum of Rs.4,60,000/- on account of mental agony and physical harassment and a sum of Rs.21,000/- as litigation charges. Since, the Ops have been found to have adopted unfair trade practice by selling  two packets of biscuits beyond the expiry date, it would be just, fair and reasonable to award a compensation of Rs.10,000/- to the complainant, in addition to the refund of purchase price of Rs.25+10=35/- to him. Further, the complainant is also entitled to be compensation on account of expenses incurred by him as litigation charges.  Further, in our opinion, the OP No.1 is also liable to be burdened with cost to be deposited in Legal Aid Account of State Commission, Haryana.

15.            As a sequel to the above discussion, we partly allow the present complaint with the following directions against OPs No.1 & 2:-

1. The OP No.2 is directed to refund the amount of Rs.35/-(Rs.25+10) i.e.  the price of the biscuits in question along with  interest @9% per annum(S.I.) to the complainant w.e.f. the date of filing of the complaint till its realization.
2. The OP No.2 is also directed to pay a sum of Rs.10,000/- to the complainant on account of mental agony and harassment suffered by him.
3. The OP No.2 is further directed to pay an amount of Rs.5,500/- to the complainant on account of litigation charges.
4. The OP No.1 is burdened with a cost of Rs.20,000/- due to its indulgence into unfair trade practice, to be deposited by it, in the shape of demand draft payable in the Legal Aid Account of State Commission, Haryana.
5. The OP No.1 as well as OP No.2 are directed to take adequate precautions while selling their products to the public and in future, both will refrain from adopting such practice of selling of their products to the customers beyond the expiry date.

 

16.            The OPs No.1 & 2 shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OP failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

Announced on: 02.05.2023

 

 

 

 

        Dr.Barhm Parkash Yadav      Dr.Sushma Garg          Satpal

                      Member                  Member                  President

 

Note: Each and every page of this order has been duly signed by me.

 

 

                                                 Satpal

                                            President