Tamil Nadu

North Chennai

56/2013

L.Raja Sekar, - Complainant(s)

Versus

Chairman & Managing Director, - Opp.Party(s)

A.Muniraja

11 Aug 2016

ORDER

 

                                                            Complaint presented on:  13.03.2013

                                                               Order pronounced on:  11.08.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

THURSDAY  THE 11^th  DAY OF AUGUST 2016

 

C.C.NO.56/2013

 

Mr.L.Rajasakar,

S/o.V.Lakshmi Pathi,

No.5/209, D-Type,

63^rd Street, Sidco Nagar,

Villivakkam,

Chennai – 49.

                                                                                               ..... Complainant

 

..Vs..

1.Chairman and Managing Director,

ITC Ltd., 37 JL, Nehru Road,

Kolkatta – 700 071,

West Bengal.

 

2.The Managing Director,

Disha Foods Pvt. Ltd.,

Plot No.82, I.D.A. Kattedan,

Hyderabad – 500 077.

 

3.The Proprietor,

Shalini Store,

No.5/232, E-type,

3^rd Main Road, Sidco Nagar,

Villivakkam, Chennai – 49.

	.....Opposite Parties

Date of complaint                                : 14.03.2013

Counsel for Complainant                     : A.Muniraja, Akila.S

Counsel for 1st opposite party                 : M/s.C.Manishankhar

Counsel for 2^nd Opposite Party                     : M/s. S.D.S.Phillip & B.Priya

Counsel for 3^rd Opposite Party                      : Ex-parte

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IS IN BRIEF:

          The Complainant had purchased 5 packets of Biscuit of ITC Company named “Sunfeast Special Tasty Orange Cream Biscuit” from the 3^rd Opposite Party by paying a sum of Rs.5/- for each packet. After consuming 2 biscuits packets, when the Complainant about to open the 3^rd  biscuits packet, he found that the said packet was in irregular shape and by his touch he felt that it was in less weight than the other biscuit packets. The subject biscuit packet was manufactured by the 2^nd Opposite Party vide batch No.F25A and packaged on 15.09.2012. The Complainant requested to replace the subject biscuit packet with some other rightly weighed packet. But the 3^rd Opposite Party refused to replace the same and informed the Complainant that he has sold whatever the company had supplied to him for retail business. The Sunfeast biscuit products are owned and marketed by the first Opposite Party i.e. ITC limited which is one of the leading companies in India on various food products. Only upon the trust of the ITC brand name the Complainant used to give priority to buy first Opposite Party’s products while buying any food product. On 17.12.2012, he has sent a legal notice to the Opposite Parties. For which the 3^rd Opposite Party has given a reply letter. Wherein the 3^rd Opposite Party had agreed that the Complainant purchased the biscuit packets from his shop and also agreed that biscuit packet has to weigh50 grams and whereas the subject matter biscuit packet was less weighed as 36 grams and also admitted that he had denied for replacing the same.  All the Opposite Parties simply sent a letter stating that the product is manufactured from a HACCP certified manufacturing location and asked the less weighed packet for their technical study.  The biscuit packet weighed only 36 grams as against 50 grams as declared on the wrapper which is nothing but misleading, misrepresentation, leading to unfair trade practice. The acts of all the Opposite Parties have put the Complainant to the mental agony and hardship. The Opposite Parties are guilty of Deficiency in Service, unfair and deceptive trade practice and faulty and defective service.  Hence the Complainant filed this Complaint to refund the cost of the biscuit for less weight and also compensation for mental agony with cost of the Complaint.

2.WRITTEN VERSION OF THE 1^st OPPOSITE PARTY IN BRIEF:

          The first Opposite Party states that they are involved in the business of manufacture of FMCG, tobacco, hotels and foods etc. This Opposite Party further states that they are leading manufactures of the food products in India including the ‘sunfeast’ special tasty orange cream biscuit which is the subject matter of this proceeding. This Opposite Party states that the products are manufactured with atmost care. The product is being manufactured from a Hazard Analysis Critical Control point system (hereinafter referred to as HACCP) certified manufacturing location and this Opposite Party takes every care to see that the products are manufactured as per the law and by adhering to the high points wherever food safety hazards may occur in a food production process and puts into place stringent controls to prevent the hazards from occurring. By strictly monitoring and controlling each step of the process, there is possibility to assure the safety of the food products they produce. The 2^nd Opposite Party unit is HACCP certified through DNV, Netherlands which is one of the world’s leading certification bodies offering party states that they have shown utmost attention to the quality and quantity of the products manufactured. Hence this Complaint is false, frivolous and is filed only with ulterior motives to extract money from this Opposite Party. The 1^st Opposite Party emphatically denies the allegation that when the Complainant was about to open the 3^rd biscuit packet, he noticed the packet to be different and of irregular shape, by his touch he could feel that the particular biscuit packet was less weight and the number of biscuits in that packet emphatically denies the allegation that when the Complainant weighed the subject matter of biscuit packet, it was only 36 gms inclusive of the wrapper whereas the declared net weight of the biscuit packet in the wrapper is 50 gms. The other averments in the Complaint are denied. This Opposite Party is not guilty of Deficiency in Service and for unfair trade practice. Therefore this Opposite Party prays to dismiss the Complaint.

3.WRITTEN VERSION OF THE 2^nd OPPOSITE PARTY IN BRIEF:

          The Complaint was filed belatedly i.e on 01.03.2013 after four months of the alleged purchase on 02.11.2012 and even the notice sent by the Complainant is dated 17.12.2012, which is more than 45 days after the alleged incident. This Opposite Party had sent a reply dated 30.12.2012 requesting the Complainant to produce the said biscuit packet for their analysis and study for which there was no reply from the Complainant. This clearly establishes that this Complaint is false and motivated. If the packed biscuits are not stored in proper condition then there is every possibility of the variation in the weight of the contents of the packet and the Complainant ought to have immediately approached this Opposite Party by sending the alleged defective packet for analysis and study and having failed to do so, he cannot now maintain this Complaint. This Opposite Party further states that they are protected under the provisions of the Legal Metrology Act, 2009 and the Legal Metrology (packaged Commodities) Rules 2011 as they have complied with the said provisions and pray that their reply dated 30.12.2012 may be read as part and parcel of this version. The other averments made in the Complaint are denied. There is no cause of action for the Complainant filed by the Complaint. This Opposite Party has not committed any negligent and Deficiency in Service and prays to dismiss the Complaint.  

4. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what relief?

5. POINT NO: 1

          It is an admitted fact that the 1^st Opposite Party is the brand owner and marketing the “Sunfeast” biscuit and the 2^nd Opposite Party is the manufacturer and packer of the Sunfeast product including the biscuit named “Sunfeast Special Tasty Orange Cream Biscuit”. The Complainant purchased Sunfeast Biscuits from the 3^rd Opposite Party retailer under Ex.A5 receipt and each biscuit costs Rs.5/-.

          6. Ex.A5 is the bill proof for purchase of 5 numbers of Sunfeast Biscuits from the 3^rd Opposite Party on payment for a consideration of Rs.25/-. It is the case of the Complainant that one of the biscuit packets is only 36 grams instead of actual 50 grams in weight. The said biscuit packet produced before this Forum and the same was sent for Food Analysis at Guindy for weighing the biscuit and to submit report to this Forum. The Complainant himself averred in the Complainant that the said biscuit packet is in batch No.F25A and packed on 15.09.2012. The report sent by the Food Analysis is marked as Ex.C1. The date of pack and batch number is confirmed in the said report excepting the year mentioned as 2013 instead of 2012. The net weight of the biscuit packet is 50 grams is not in dispute.  Food Analyst also mentioned in his report that the weight of the sample is only 36.090 grams. Therefore as per the report and as alleged by the Complainant the sample biscuit is weighed only 36.090 grams and it is nearly lesser in weight of 14 grams. Further the 3^rd Opposite Party also gave Ex.A2 reply to the Ex.A1 legal notice that he sold the Sunfeast biscuit containing less in weight and also refused to replace the said biscuit packet. The reply of 3rd Opposite Party also support the case of the Complainant that the biscuit packet sold to the Complainant weighed only 36 grams instead of 50 grams is less in weight of 14 grams.

          7. The 1^st Opposite Party contended that in the Legal Metrology rules 2011,   rule 19(1) was not followed and as per rule 19(8) five  samples to be taken and if it is not taken the said rule was violated and further rule 21 applies to the case and  further as per Ex.B1 random check list the product was manufactured on 13.09.2012 and checked on 14.09.2012 and sent for sale on 15.09.2012 as per Ex.B2 and therefore once the certificate is issued no one can question and therefore this Opposite Party has not committed Deficiency in Service.

          8. The 2^nd Opposite Party contended that there is no evidence that the number of biscuits pieces available in the pack and this Opposite Party asked the Complainant to produce the pack by issuance Ex.B7 letter to provide the said pack to them to take up the issue with their technical consultant and further the Complainant did not produce the pack and further there is no proof available that the packet sent for the analysis is intact one and tampered and therefore this Opposite Party also has not committed any Deficiency in Service.        

          9. Ex.B1 is the random sample check list of finished goods. The check date was on 14.09.2012 and 28.09.2012. Ex.B2 is the proof for the product sent out for the sale on 15.09.2012. The disputed biscuit batch number is F25A. Further no batch no was mentioned in Ex.B1 and Ex.B2. Therefore, Ex.B1 and Ex.B2 documents has no relevance to the product is in dispute in this case.

          10. The rule 19 (1) of the Legal Metrology Rules, 2011 provides for inspection of quantity and errors in packages at the premises of the manufacturer or at the packing place. Likewise rule 19(8) provides to take five representatives samples of the packages only at manufacturing place or at the packer. Therefore the above rule apply only at the manufacturing place and not at the retail seller place and therefore the above said rules is no way helpful to the case of the 1st Opposite Party.

11. The 2^nd Opposite Party contended that no evidence about the nature of packing and the same has been tampered or not. The Complainant categorically stated in CMP 67/2013 to send the sample to the Food Analysis that biscuit packet has not been opened and the same will be decided by the proper authority to identify the examination in the above biscuit packet. This fact was not denied by the Opposite Parties in their counter and that proves that the product sent to the laboratory for weighing was intact and not tampered.

          12. As demanded in Ex.B7 the Complainant has not sent the biscuits packet to the 2^nd Opposite Party. Further in Ex.B7 it has been stated that the gifts hamper Sunfeast Biscuits products would be sent to him. However the Complainant categorically stated that no such product was received by him. Since the same was not sent to him by the 2^nd Opposite Party, no proof filed to show that the gift hamper was sent to the Complainant. The Complainant had produced the biscuit packet in this Forum and the same is weighed only 36.090 grams. Therefore the Complainant  has not produced the pack to the 2^nd Opposite Party is no way affect the case of the Complainant and further we hold that  gift hamper  pack  was not sent to the Complainant.

          13. Section 2E of the legal Metrology Rules 2011 provides maximum permissible error. Section 2E deals error in deficiency does not exceed limit specified in the 1^st schedule. As per the 1^st schedule 50 gram to 100 gram pack the maximum permissible error in excess or in deficiency is 4.5.gms Whereas, in the case in hand 14 gram weight of the biscuit is more than the maximum permissible error in the quantity of the biscuit. Therefore the Complainant proved that the biscuit packet   which was sold to him under Ex.A5 is 14 grams less than actual weight of 50 grams and therefore we hold that the Opposite Parties 1 and 2 have committed Deficiency in Service in respect of the quantity of the product.

14. The 3^rd Opposite Party is only a retail seller and who has sold the product manufactured by the 2^nd Opposite Party and marketed by the 1^st Opposite Party to the Complainant. The 3^rd Opposite Party sent Ex.A2 reply to the Complainant counsel for the legal notice Ex.A1 sent to him. In the said reply the 3^rd Opposite Party stated that the Complainant purchased the sunfeast biscuit packets form his shop and also admitted that the one of the biscuit packet sold to him is less in weight and further the Complainant asked to replace the said biscuit packet he refused to replace the same, since he has sold the biscuit packet manufactured by the company.  Through Ex.A2 the Complainant proved that he had approached the 3^rd Opposite Party/retail seller to replace the biscuit packet. The 3^rd Opposite Party admitted in his letter that the biscuit packed sold to the Complainant is less in weight and therefore having the 3^rd Opposite Party has knowledge that the product sold to the Complainant is lesser in weight, he ought to have replaced the same and after replacing he should have informed to his supplier and to the company. If he could have replaced the product, the Complainant ought not to have chosen to file this Complaint before this Forum. Therefore the 3^rd Opposite Party who could have easily solved the problem by replacing the product and he himself has knowledge that he sold the lesser weight product establishes that the 3^rd Opposite Party also committed Deficiency in Service.

15. POINT NO :2

          As the product is having lesser in weight the demand of the Complainant to refund the cost of Rs.5/- product is acceptable and for the same the Complainant is entitled to get refund. Further due to the Deficiency in Service the Complainant suffered with mental agony is accepted and therefore the Opposite Parties 1 to 3   can be ordered to pay a sum of Rs.10,000/- towards compensation for mental agony would be sufficient, besides a sum of Rs.5,000/- towards litigation expenses.

In the result the Complaint is partly allowed. The Opposite Parties 1 to 3 jointly or severally are ordered to refund a sum of Rs.5/- (Rupees five only) towards the cost of the product to the Complainant and also to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony, besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 11^th  day of August 2016.

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 17.12.2012                   Legal Notice

Ex.A2 dated 21.01.2013                   Reply letter by the 3^rd Opposite Party

Ex.A3 dated 30.12.2012                   Reply letter by the 2^nd Opposite Party

Ex.A4 dated 30.01.2013                   Reply letter by the 1^st Opposite Party

Ex.A5 dated 02.11.2012                   Receipt

 

LIST OF DOCUMENTS FILED BY THE  1^st OPPOSITE PARTY:

Ex.B1. dated 14.09.2012                  Random Sample check  list of finished goods

Ex.B2 dated 15.09.2012                   Packet Weight Chart

Ex.B3 dated 17.12.2012                   Legal notice issued by the Complainant

Ex.B4 dated 30.01.2013                   Reply issued by the 1^st Opposite Party

Ex.B5 dated 31.01.2014                   Letter of Authorization

Ex.B6 dated 22.10.2011                   Certificates issued by the Legal Metrology

07.11.2012,17.11.2012           Department, Government of Andhra Pradesh

03.08.2013, 12.11.2013

 

Ex.B7 dated 30.12.2012                   Reply issued by the 2^nd Opposite Party along with

                                                delivery report  

 

LIST OF DOCUMENTS FILED BY THE  2^nd  OPPOSITE PARTY:

Ex.B8 dated 17.04.2014                   Proof Affidavit of  Mr.T.F.Basha

LIST OF COURT DOCUMENTS:         

Ex.C1 dated 08.08.2013                   Certificate of Analysis  

                                     

 

MEMBER – II                                                               PRESIDENT