BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 27/12/2010

Date of Order : 30/11/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 676/2010

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the case leading to this complaint are as follows :

The complainant as well as general public are very much affected by the spiraling of price of essential commodities especially the price of onion. The State has the duty to control the price hike. The Central Government enacted the Essential Commodities Act 1955 to control the production, supply and distribution of essential commodities. Based on the above Act, the Kerala Government was pleased to issue the Kerala Essential Commodities (Maintenance of Accounts and Display of Prices and Stocks) Order 1977. As per the order, the opposite parties 1,2,4 and 5 are empowered to curb the spiraling of prices of essential commodities in particular onion. On 22-12-2010, the complainant purchased one Kg. of onion from the 6^th opposite party at a price of Rs. 82/- per Kg. But the basic price of onion is only Rs. 15/-. The price of onion in Cochin City differs in different shops. Though the opposite parties are duly empowered or under obligation under the act to take appropriate action, they remain silent spectators. Thus, the complainant is before us with the following reliefs :

1. To direct the 6^th and 7^th opposite parties not to sell onion for more than Rs. 15/- per Kg.

2. To direct the 6^th and 7^th opposite parties to refund the excess price levied by them from the complainant.

3. To direct the opposite parties 1 to 5 to take action under the Kerala Essential Commodities (Maintenance of Accounts and Display of Prices and Stocks) Order 1977.

4. To direct the shop owners to exhibit the stock and price of onion during the ensuing X'mas and New Year season.

5. To direct the opposite parties 1 to 5 to take action in order to show the stock and price of onion by the shop owners.

6. To direct the 6^th and 7^th opposite parties to pay a compensation of Rs. 5,000/- each.

2. The version of the 1^st opposite party :

The District Collector and the District Supply Officer, Ernakulam are legally bound to implement the provisions of the Essential Commodities Act, 1955 and the Kerala Essential Commodities (Maintenance of Accounts and Display of Prices and Stocks) Order 1977, in Ernakulam District for making available all essential commodities to the consumers at all times by taking steps to prevent hoarding and black marketing of essential commodities by the traders and also by ensuring that the trades do not resort to any kind of unfair trade practices. The District administration has taken/is taking all possible measures to implement and comply with the provisions of the Essential Commodities Act, 1955 as well as the other Licensing and Control Orders promulgated there under by the Central as well as the State Governments. Therefore, it appears that the petition has been filed unnecessarily enlisting the opposite parties 1 to 5 in the party array on an experimental basis.

3. The 2^nd opposite party raises identical contentions as that of the 1^st opposite party.

4. The defense of the 3^rd opposite party :

The allegations raised in the above complaint comes under the relevant provisions of the Kerala Essential Commodities (Maintenance of Accounts and Display of Prices and Stocks) Order 1977 and the action to be taken to avoid the problems of publication of Stock Account and Price list of Essential Commodities rest with the Officers of Civil Supplies and Police Department. Cause of action in the above Consumer Complaint arose in the limit of Kochin Corporation. However, instructions will be given to the Secretaries of Grama Panchayats in Ernakulam District to check the shops and ensure necessary boards are placed in so as to see the same to the General Public as and when the issuance of licence for running business.

5. The contentions of the 4^th opposite party :

This complaint will not lie either in law or on facts. There is no deficiency of service from the side of the 4^th opposite party. Corporation is unnecessarily impleaded in this complaint. There is no breach of duty from the side of Corporation. If there is any breach of duty, remedy is elsewhere. Hence this complaint may be dismissed with compensatory cost of the opposite party.

6. Arguments of the 6^th opposite party :

The Ashis Super Mercato is owned and administered by 'Ashis' a Society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act 1955. The establishment was begun in 1993 by The Most Rev. Dr. Cornelius Elanjikal, the then Archbishop of Verapoly. The main objective of the establishment is to make available to the public quality items of consumer goods. The goods are procured for the distribution in retail from various wholesale dealers. The items of goods are meticulously examined. Stones, decayed articles etc. are removed before they are exhibited for sale. The articles are weighed or measured in kilograms before they are packed. The price of each item is printed or written on papers and affixed on each and every packet. The consumers can very well examine the quality of the goods and know the price of each item before they decide to buy. Apart from the above display of goods, the prices of each item specified under the Essential Commodities Act are clearly shown on a board maintained in the establishment. The Ashis Super Mercato was constrained to fix the price of onion at Rs. 82/- per kilogram. The establishment had purchased onions from a wholesale dealer as per the bill. The wholesale price was Rs. 75/- per Kg. at the time of purchase. After procuring the onion, the women employees had to examine the onions. The spoiled and decayed onions had to be removed before the onions were packed and exhibited for sale. There was absolutely no deficiency of service as alleged. There is no violation of respective trade practices either.

7. The objection of the 7^th opposite party :

The complainant has not produced any document to show that a basic price of Rs. 15/- is fixed for the 'big onion' by the Government. If at all any such basic price is fixed, it is to help the onion farmers to get a minimum price for their product. It is worthy to note that no maximum price is fixed by the Government in this regard. Basic price of Rs. 15/- if at all fixed, it does not imply that the onion cannot be sold above the said price. On the contrary, it would mean that at least Rs. 15/- should be available as price to the farmers. The 7^th opposite party is a private limited company, running super markets on various places in the Ernakulam District with an aim to provide the provision and other items to the general public at a reasonable rate. The 7^th respondent is purchasing commodities from the wholesale dealers, and is retailing the same without taking much margin. In fact, the price of the big onion purchased by the 7^th respondent, on 21-12-2010 and 22-10-2010 were at the rate of Rs. 65/- and 70/- respectively. But the 7^th respondent has sold the onion on a lower price with an intention to bring down the prices and also on a service basis. There is neither any failure in service by this respondent nor is there any lack of deficiency in service as mentioned in Section (2) of the Consumer Protection Act. Hence the complaint against this respondent is not maintainable.

8. In spite of service of notice from this Forum, the 5^th opposite party chose to remain absent for their own reasons. No oral evidence was adduced by the complainant. Exts. A1 to A3 were marked on his side. Neither oral nor documentary evidence was adduced by the opposite parties 1 to 6. Exts. B1 and B2 were marked on the side of the 7^th opposite party. Heard the complainant who appeared in person and the counsel for the 7^th opposite party.

9. The points that emanated for consideration are :-

1. Whether the 6^th and 7^th opposite parties are not to sell onion at a price more than Rs. 15/- per Kg.?

2. Whether the 6^th and 7^th opposite parties are liable to refund the excess price of onion to the complainant?

3. Whether the opposite parties 1 to 5 are empowered to take action under the Kerala Essential Commodities (Maintenance of Accounts and Display of Prices and Stocks) Order 1977?

4. Whether the 6^th and 7^th opposite parties are liable to pay compensation of Rs. 5,000/- each to the complainant?

10. Point No. i. :- The complainant seeks direction against the 6^th and 7^th opposite parties to sell onion at a price less than Rs. 15/- per Kg. We are at a loss to comprehend the logic behind the submission, because it is totally unsustainable for the same reason. No substantial material has been placed by the complainant to support the above argument or even to contradict the same. Moreover no judicial authority has to sit in judgment of fixing of the price of any commodities, when the State has their own mechanism alone to fix the price and power to regulate the same. The point raised here is answered accordingly.

11. Point No. ii. :- The 6^th and 7^th opposite parties procure their stock from different places at different time at different prices on an as is where is basis. For the reasons affirmed in point No. i., the question in point No. ii. does not arise to the affirmative.

12. Point No. iii. :- During the proceedings in this Forum at the instance of the complainant vide order in I.A. No. 771/2010 dated 01-01-2011, this Forum passed the following order :

“To wind up we allow this I.A. partly and direct 2^nd opposite party to take immediate action so as to see that clause 6 of the Kerala Essential Commodities (Maintenance of Accounts and Display of Prices and Stocks) Order 1977 is enforced without fail within his territorial jurisdiction so that the stock list as well as price list of essential commodities including onion are displayed at entrance or other conspicuous part of the place of business of sellers and report to this Forum within 30 days from the receipt of this order the compliance there of.”

The furtherance of the above order, the 2^nd opposite party filed a report dated 19-02-2011 which reads as follows :

“Necessary directions on the lines of the direction issued by this Honourable Forum have been issued to all Taluk Supply Officers and City Rationing Officers of this District, to ensure that Clause 6, of the Kerala Essential Commodities (Maintenance of Accounts and Display of Prices and Stocks) Order 1977, is complied with by all traders within the respective territorial jurisdiction of the Officers concerned, and furnish compliance report to District Supply Officer. Accordingly all Taluk Supply Officers and City Rationing Officers have furnished compliance report in the matter as per the direction issued from this Office.

It is therefore most respectfully submitted that as a result of the measures taken as stated in the versions filed by the District Collector, Ernakulam, dated 07-02-2011, and also by the this opposite party on the same day, and also due to the strict enforcement of the provisions of the Kerala Essential Commodities (Maintenance of Accounts and Display of Prices and Stocks) Order 1977, pursuant to the Directions of this Hon'ble Forum, the prices of vegetables especially that of Big onion has come down to a considerable extent. The retail price of Big onion is now around Rs. 20/- per kg. in almost all the market places throughout the District and further decrease in the price is also expected.”

13. We do appreciate the due diligence exhibited by the 2^nd opposite party with due care to comply with the interim direction of this Forum calls for applaudable appreciation.

14. As per Clause 2 (b) of the Kerala Essential Commodities (Maintenance of Accounts and Display of Prices and Stocks) Order 1977, the Enforcement Officers as empowered to enforce the order are :

“Enforcement Officer” means any person appointed by order of the State government as Enforcement Officer in respect of such area as may be specified in such order, and where no such person has been appointed in any area, any officer of the Civil Supplies Department not below the rank of Rationing Inspector or any Officer of the Police Department not below the rank of Sub-Inspector having jurisdiction in the area.”

15. Clause 6 of the order is as follows :

“Display of stocks and prices :- (1) Every dealer shall exhibit at the entrance or some other conspicuous part of his place of business a statement indicating the stocks of essential commodities in his possession available for sale at the commencement of each working day.

(2) Every dealer shall also display at the entrance or other conspicuous part of his place of business on a special board to be maintained for this purpose the price at which each essential commodity is offered for sale.

(3) The statement of stock and the statement of price displayed under sub-clause (1) and (2) shall specify the name of the essential commodity in English or in Malayalam or in any other language understood by the majority of the consumers in the area concerned and the price in the international form of Indian numerals.

(4) Subject to the provisions of sub clause (3) a dealer may maintain and display the statement of stocks and the statement of price in more than one of such language, if he so desires.”

16. Essential Commodities as per the schedule appended to the order is as follows :

1. Greengram

2. Redgram

3. Dhall (Thuvaraparippu)

4. Blackgram

5. Bengalgram

6. Coconut Oil

7. Chillies

8. Tapioca

9. Coriander

10. Onion

11. Potato

12. Groundnut Oil

13. Gingelly Oil

14. Sugar

15. Khandasari Sugar

16. Tee dust

17. Coffee powder.

17. As per Clause 6 of the order the retail dealers are bound to exhibit the stock of the essential commodities in his possession available for sale at the commencement of each working day and also bound to display the price of each essential commodity in a language understood by the majority of the consumers.

18. The 1^st and 2^nd opposite parties are taking their earnest efforts to implement the above order in letter and spirit. However, a closer watch and supervision by the concerned authorities especially the enforcement officers is necessary to see to it that the dealers defined in the order are complying with the provision in the order without fail. If the above officers are vigilant in their duties as observed above, consumer disputes in this field can be lessened. This Forum is of the absolute faith that the observations would be upheld.

19. Point No. iv. :- For reasons stated above and matters being settled to the best, this Forum does not consider that compensation is called for.

20. In view of the above, the proceedings in this complaint stand closed with a direction to the Registry to forward a copy of this order to the opposite parties, Commissioner of Police, Kochi and the Superintendent of Police, Aluva Rural for necessary compliance.

Pronounced in open Forum on this the 30^th day of November 2011.

Sd/- A. Rajesh,President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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