Order dictated by:

Sh.S.S. Panesar, President

1.       Sh.Vijay Kumar has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that he is peaceful and law abiding citizen and the Opposite Party No.1 is running his business of karyana merchant since long and Opposite Party No.2 is manufacturer of different kinds of products.  On 17.4.2016 the complainant approached Opposite Party No.1 and purchased Kohinoor Walnut Kernels for Rs.230/- vide invoice No. 9041 dated 17.4.2016. Opposite Party No.2 is the manufacturer of Kohinoor Walnut Kernels. At the time of purchase of said product, the manufacturing date of the product was March, 2016  and it was to be used within six months from its manufacture. After purchase of said Walnut Kernels, when the complainant tried to taste it, the complainant felt very bad taste of Kohinoor Walnut Kernels and bad smell was coming from the said product. After the bad  taste of the said product when the complainant again checked its expiry date, the complainant was surprised to know that the Opposite Parties  had affixed double sticker on the date of manufacturing. In fact the actual date of manufacturing of the said product was September, 2015 and it was to be consumed within six months from its manufacturing, but the Opposite Parties  pasted double sticker on the date of manufacturing. After came to know the said fraud committed by the Opposite Parties, the complainant approached Opposite Party No.1 and asked and requested him to change the packet of said product, but Opposite Party No.1 did not listen the requests of the complainant. The complainant also approached Opposite Party No.2 and narrated them the said fact, but Opposite Party No.2 also did not listen the request of the complainant. Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Parties may be directed to refund the amount of Kohinoor Walnut Kernels which the complainant purchased from Opposite Party No.1 vide bill dated 17.4.2016.

b)      Opposite Parties may be directed to pay Rs.90,000/- as compensation for mental harassment and agony caused to the complainant and the license of the Opposite Parties  may also be cancelled for deficiency in service committed by them.  

c)       Costs of the complaint may also be awarded to the complainant.

d)      Any other relief to which the complainant is found entitled may also be granted to him.

Hence, this complaint.

2.       Upon notice, opposite parties No.1 & 2 appeared and contested the complaint by filing  separate  written statement. Opposite Party No.1 filed written reply by taking preliminary objections therein inter alia that the present complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed as such; that the answering Opposite Party strongly objected that in the present complaint which is complicated questions of law and facts are involved, for which strict proof are required which are to be decided by Civil Courts; that the complaint filed by the complainant is not maintainable being false, frivolous, baseless and without any cause of action against the answering Opposite Party. The claims made by the complainant in the complaint under reply against  the answering Opposite Party are vexatious and speculative in nature and are after thought of the complainant for unjust enrichment and to harass the answering Opposite Party No.1 to make it succumb to illegal, unjustified and untenable demand of the complainant. The complainant does not have any right to initiate any legal action against the answering Opposite Party. The attempt of complainant to pressurize Opposite Party No.1 is wholly improper and unjust. Thus, the complaint under reply, which has been filed to abuse the judicial process by  making untenable cause, is liable to be dismissed with costs; that if there is anything wrong or unfair then there is unfair trade practice on the part of Opposite Party No.2 as Opposite Party No.2 is a manufacturing product in the market and the Opposite Party No.1 is selling the same being as retailer and earning profit. There is no deficiency in service or unfair trade practice on the part of Opposite Party No.1 and  it has been wrongly impleaded;  that the present complaint is in fact filed, at the behest of certain vested interest, the complainant has filed the present complaint out of greed and lust for money and on account of the fact that certain cases have gone adverse to the like matters and that  this complaint is alleged to be like matters and that  this complaint is alleged to be likely to meet the same fate; that there is no cause of action against Opposite Party No.1 that the role of Opposite Party No.1 does have any role with regard to the complainant complaint. On merits, it was averred that the complainant approached  before Opposite Party No.1 on 17.4.2016 for purchase of one packet of 250 gms. of Kohinoor Walnut Kernels vide invoice No. 9041 and rest of the allegations levelled against Opposite Party No.1 and rest part are not concerned with Opposite Party No.1. It is denied that the manufacturing date of the product was March, 2016. The complaint is false and incorrect and frivolous and the complainant never approached the shop of 1 and filed the false and frivolous complaint. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       Opposite Party No.2 filed separate reply contesting the instant complaint and took preliminary objections therein inter alia that the complaint is not maintainable in the eyes of law as the complainant has not come to the court with clean hands and has suppressed the material facts from this Forum; that the complainant has narrated in para No.2 of the complainant that the Opposite Party No.2 is a manufacturer of Walnut Kernels. It is worth mentioning here that till date no scientific invention has come on the earth that any body can manufacture the Walnut Kernels (Giri Akhrot). Only Walnut (Sabut Akhrot) are created by the God and  not by Walnut Kernels (Giri Akhrot). At the time of sale of  Walnut Kernels, the Opposite Party always issued a bill and there is a batch number on every box containing Walnut Kernels alongwith date of packing and its expiry date; that before selling the Walnut  in the market, it is always kept in the cold stores under specific temperature and whenever sold it was specifically told to the purchaser to keep the Walnut  in the fridge; that from Ist April, 2016 till date the Opposite Party has not sold walnuts (Sabut Akhrot) to Opposite Party No.1 and the  last sale of Walnut Kernels were made on 19.3.2016; that the business transaction with Opposite Party No.1 started  on 4.12.2015 and lasts on 19.3.2016. On merits, the Opposite Party No.2 took almost same and similar objections as taken by them in preliminary objections.  Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

4.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.C1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2 to Ex.C4 and closed his evidence.

5.       On the other hand, to rebut the evidence of the complainant, the Opposite Party No.1 tendered into evidence the affidavit of Sh.Jagdish Kumar Arora Ex.OP1/1, affidavit of Gaurav Mahajan Ex.OP1/2 alongwith copies of documents Ex.OP1/3 to Ex.OP1/20 and closed the evidence on behalf of the Opposite Party No.1. Similarly,  Opposite Party No.2 tendered into evidence affidavit of Raj Kumar, proprietor Ex.Op2/1 alongwith copies of documents Ex.Op2/2 to Ex.Op2/15 and closed the evidence on behalf of Opposite Party No.2.  

6.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

7.       Ld.counsel for Opposite Party No.1 has vehemently contended that the complaint filed by the complainant is not maintainable being false, frivolous and baseless and without any cause of action against Opposite Party No.1. The complainant never made any request/ complaint regarding the alleged product to Opposite Party No.1. If there was anything wrong or unfair, then the unfair trade practice was on the part of Opposite Party No.2 as Opposite Party No.2 is  manufacturer of the  product while Opposite Party No.1 was selling the same being a retailer. There is no deficiency in service or unfair trade practice on the part of Opposite Party No.1 and it has been impleaded wrongly. As per the allegations in the complaint, the matter in dispute requires lengthy and detailed evidence as well as trial to prove either way, the present matter can not be disposed of in summary manner under the Act as the allegations are complex and complicated in nature. The matter can be only tried by the civil court. The complainant approached Opposite Party No.1 for purchase of one packet of 250 gms. of Kohinoor Walnut Kernels vide invoice No. 9041 dated 17.4.2016 and on 18.4.2016 the complainant again approached the Opposite Party No.1 for demand of cash bill and Opposite Party No.1 issued him the cash bill. After that the complainant never approached the Opposite Party No.1 for  any such problem. There is  absolutely no deficiency in service on the part  of  replying Opposite Party No.1 and the matter, if any, relates to Opposite Party No.2 and the complaint against Opposite Party No.1 is not at all tenable and the same may be dismissed with costs.

8.       On the other hand, ld.counsel for Opposite Party No.2 has vehemently contended that in para No.2 of the complaint the complainant has narrated that Opposite Party No.2 is manufacturer of  Walnut Kernels. It is worth mentioning here that till date no scientific invention has come on the earth  that any body can manufacture the Walnut Kernels. Only walnuts (Sabut Akhrot) are created by the God and not the Walnut Kernels (Giri Akhrot). At the time of  sale of walnuts, the Opposite Party always issued a bill and there is a batch number on every box  containing Walnut Kernels alongwith date of packing and its expiry date. It is further contended that before selling the walnuts in the market, those are  always kept in the cold stores under specific temperature and whenever those are sold  it is  specifically told to the purchaser to keep the walnuts in the fridge. From Ist April till date, Opposite Party No.2 has not sold walnuts (Sabut Akhrot) to Opposite Party No.1 and the last sale of walnuts were made to Opposite Party No.1 on 19.3.2016. The business transaction with Opposite Party No.1 started on 4.12.2015 which lasted on 19.3.2016, copies of bills issued in favour of Opposite Party No.1 are Ex.OP1/3 to Ex.Op1/18. It is contended that Opposite Party No.2 has not committed any unfair trade practice with the complainant. Whatever material was supplied to Opposite Party No.1, same was sold by Opposite Party No.2 in a packet  and if there was any defect in the goods or the date of packing has been altered, it was done by Opposite Party No.1 and Opposite Party No.2  has nothing to do with the same and it is contended that the complaint is liable to be dismissed qua Opposite Party No.2 with costs.

9.       However, from the appreciation of the facts and circumstances of the case, it becomes apparent that the date of packing of the Walnut Kernels has been changed by affixing sticker on the actual date of the packing. The actual date of packing was September, 2015 which has been changed to March, 2016 by pasting slip on the original date, which amounts to unfair trade practice. It has not been denied by Opposite Party No.2 that it sold Walnut Kernels to Opposite Party No.1 on various dates and bills/ invoices Ex.OP1/3 to Ex.OP1/18  bear witness to the said fact. In their written version, none of the Opposite Parties  have denied that Walnut Kernels contained in the packet in dispute did not belong to them. The change in the date of packing has either been made by Opposite Party No.1 or Opposite Party No.2. Both Opposite Party No.1 and Opposite Party No.2 have been passing the buck to each other regarding the said fact, but they have failed to deny that fact that the product belongs to them and the Walnut Kernels were spurious for human consumption.  In such a situation, both of them are jointly and severally liable to compensate the complainant.

10.     Consequently, instant complaint succeeds and both the Opposite Parties  are held jointly and severally liable to refund of sale price of the Walnut Kernels purchased by them vide bill No. 9041 dated 17.4.2016 for Rs.230/-.  The complainant is also entitled to compensation to the tune of Rs.5000/- besides cost of litigation to the tune of Rs.2000/-. Compliance of this order be made within 30 days from the receipt of copy of the order; failing which, awarded amount shall carry interest @ 6% p.a from the date of passing of order until full and final recovery. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 12.10.2016.