BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR.
C.C. No. 322 of 2015 Date of Institution: 29.07.2015
Date of Decision: 26.11.2015
Gourav Arora, aged 37 years son of Sh Ashok Kumar Arora, resident of Gopi Nagar, Opposite Harish Vegetarian, Ferozepur City 152002 Mobile No.94170-81786
....... Complainant
Versus
1. Easyday Bharti Crescent, 1, Nelson Mandela Road, Vasant Kunj, Phase-2, New Delhi 110070, through its Managing Director/Authorized signatory.
2. Easyday, Bharti Retail Limited ES-29, Ground Floor, Near Reebok, Malwal Road, Ferozepur 152001 through its Manager/Authorized signatory.
........ Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
* * * * * * *
PRESENT :
For the complainant : Sh Maninder Vohra Advocate
For the opposite parties : Sh Anil Arora Advocate
QUORUM
S. Gurpartap Singh Brar, President
Smt. Inderjeet Kaur, Member
C.C.No. 322 of 2015 //2//
ORDER
GURPARTAP SINGH BRAR, PRESIDENT:-
Brief facts of the complaint are that the opposite parties have been carrying on business under the name style of Easyday, Bharti Crecent and deals in selling all essential commodities of daily use including grocery items, having registered office at New Delhi opposite party No.1. One of its branch is situated at Ferozepur City i.e. opposite party No.2. It has been pleaded that complainant purchased two packets of Haldi Ram Diel mixture alongwith other grocery items from opposite party No.2 vide retail invoice No.1150004068292 for a total consideration of Rs.181/-, which included Rs.70/- qua the cost of two packets of Haldi Ram Diel Mixture (i.e. Rs.35/- per packet), whereas, printed rate on the product i.e. Haldi Ram Diet mixture was Rs.30/-. But the opposite party instead of charging Rs.30/- per packet, charged Rs.35/- per packet and in this way, opposite party No.2 charged Rs.10/- excess than the actual price of the per packet, which is illegal and wrong. The complainant raised objection qua the excess charging, but opposite party No.2 lingering on the matter on one pretext or the other. Thereafter, the complainant approached the manager of opposite party No.2 and apprised the facts and requested to redress his genuine grievance, but all in vain. The complainant served a legal notice dated 13.07.2015 upon the opposite parties through his counsel vide registered post, but to no effect. Pleading deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has prayed that the opposite parties be directed to refund Rs.10/-, which the opposite parties received excess from the complainant, to refund Rs.2/- charged towards polythene carry bag without the consent of the complainant, to pay
C.C.No. 322 of 2015 //3//
Rs.50,000/- as compensation for mental agony, pain and harassment, to pay Rs.1500/- as legal fee for issuing legal notice and Rs.5500/- as litigation expenses.
2. Upon notice, the opposite parties have appeared and filed their joint written reply to the complaint. In their joint written reply, the opposite parties took some preliminary objections interealia that the complaint of the complainant is baseless and devoid of any merits; that the opposite party company operates a large number of stores spread over India and each store in host of products. The intent of the respondent company is to serve its customer and provide goods at the most competitive price and there is no intent whatsoever to overcharge under the circumstances. The complainant never raised any objection before any concerned employees that the opposite party willfully charged the excess amount. The opposite party has not charged any excess amount of carry bag. It is denied that the price of carry bag was charged for on its own accord. In case any pricing issue is brought to notice of the store manager of the company, as a policy matter the same is immediately corrected and refund of the excess amount charged is given and the same is also intimated further so that in case there is any problem with the system and the same may be rectified; that if the complainant approached the store manager of the opposite party and pointed of the same, refund would have been forthwith issued, but rather than doing so, the complainant has instead preferred the present complaint; that the present complaint is without any just or reasonable basis, an abuse of the process of law. On merits the preliminary objections have been reiterated and the other allegations of the complaint have been denied.
3 The learned counsel for the complainant has closed evidence on behalf of the complainant by tendering into evidence Ex. C-1 to Ex.C-8. On the
C.C.No. 322 of 2015 //4//
other hand, learned counsel for opposite party Nos.1 & 2 tendered into evidence Ex.O.P1& 2/1 and closed evidence on behalf of opposite party Nos.1 & 2.
4. We have heard the learned counsel for the parties and have also gone through the record.
5 In support of his claim, the complainant has filed his affidavit, which is placed on the file as Ex.C-1. Purchase of two packets of Haldi Ram Diet Mixture in question by the complainant from opposite party No.2 is proved from the copy of bill dated 5.7.2015 as Ex.C-2. Opposite party No.2 received the cost of carry bags is of Rs.2 is also proved from the copy of bill dated 5.7.2015 as Ex. C-2. The complainant has also placed on the record Ex.C-6 and Ex. C-7, the photo copy of wrapper of Haldi Ram Diet Mixture in question wherein the M.R.P. is printed as Rs.30/-, but the opposite party has charged Rs.35/- per packet from the complainant. On the other hand, the opposite parties have produced only affidavit of Rahul Monga,
6 To prove his case, the complainant has placed on record copy of wrapper of Haldi Ram Diet Mixture in question Ex.C-6 and Ex. C-7, wherein the M.R.P. of the said packet of Haldi Ram Diet Mixture in question is printed as Rs.30/-, whereas in retain invoice Ex.C-2 shows that the opposite party has received Rs.35/- per packet of Haldi Ram Diet Mixture in question more than the M.R.P. Printed on it. On the other hand the counsel of the opposite parties contended that the price of Haldi Ram Diet Mixture in question has been has been increased and the said two packet, which were sold by the opposite parties to the complainant, were lying of the old rates. But the opposite parties have not produced on record any evidence regarding increase rate of Haldi Ram Diet
C.C.No. 322 of 2015 //5//
Mixture in question or any stock registered that these packet were lying of the old rate.
7 The complainant has filed the complaint highlighting the various aspects of unfair trade practice adopted by the opposite party. The question to be determined is that whether the act and conduct adopted by the opposite party falls in the definition of ‘Unfair Trade Practice’ as per provisions of the Consumer Protection Act. For that purpose, the following Sections of the Consumer Protection Act are relevant, which are reproduced as under :-
“2. Definitions. – (1) In this Act, unless the context
otherwise requires, -
(a) ________
(b) “Complainant” means :-
(i) ________
(ii) ________
(iii) ________
(iv) One or more consumers, where there are
numerous Consumers having the same
interest.”
(c) “Complaint” means any allegation in writing
made by a complainant that -
(i) an unfair trade practice or a restrictive trade
practice has been adopted by (any trader or
service provider);
(i) ________
(iii) __________
(iv) a trader or the service provider, as the case
may be, has charged for the goods or for the
services mentioned in the complaint, a price
in excess of the price –
(a) fixed by or under any law for the time being
in force;
(b) displayed on the goods or any package containing
such goods;
(c) displayed on the price list exhibited by him by or under any law for the time being in force;
(d) agreed between the parties.”
____________
(r) “Unfair Trade Practice” means a trade practice
which, for the purpose of promoting the sale, use or
C.C.No. 322 of 2015 //6//
supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practice, namely :-
(1) the practice of making any statement, whether orally
or in writing or by visible representation which, -
“(i) ___________
_____________
(ix) materially misleads the public concerning the
price at which a product or like products or
goods or services, have been or are, ordinarily
sold or provided, and, for this purpose, a
representation as to price shall be deemed to
refer to the price at which the product or goods
or services has or have been sold by sellers or
provided by suppliers generally in the relevant
market unless it is clearly specified to be the price
at which the product has been sold or services have
been provided by the person by whom or on whose behalf the representation is made.
____________
Explanation :- For the purpose of clause (1), a
statement that is –
(a) expressed on an article offered or displayed
for sale, or on its wrapper or container; or
(b) expressed on anything attached to, inserted
in, or accompanying an article offered or
displayed for sale or on anything on which
the article is mounted for display or sale; or
(c) contained in or on anything that is sold, sent,
delivered, transmitted or in any other manner
whatsoever made available to a member of the
public,
shall be deemed to be statement made to the
public by, and only by, the person who had
caused the statement to be so expressed,
made or contained;
(2) Permits the publication of any advertisement
whether in any newspaper or otherwise, for the
sale or supply at a bargain price, of goods or
services that are not intended to be offered for
sale or supply at the bargain price or for a period
that is, and in quantities that are, reasonable,
having regard to the nature of the market in which
the business is carried on, the nature and size of
business and the nature of the advertisement.
C.C.No. 322 of 2015 //7//
Explanation – For the purposes of clause (2),
“bargaining price” means –
(a) a price that is stated in any advertisement
to be a bargain price, by reference to an
ordinary price or otherwise, or
(b) a price that a person who reads, hears or
sees the advertisement, would reasonably
understand to be a bargain price having regard
to the prices at which the product advertised or
like products are ordinarily sold;
(3) Permits -
(a) the offering of gifts, prizes or other items
with the intention of not providing them as
offered or creating impression that
something is being given or offered free of
charge when it is fully or partly covered by
the amount charged in the transaction as a
whole”
8. As per Section 14 (1) (f) and (hb) of the Consumer Protection Act, which for facility of reference is reproduced below, it has been provided:-
“14. Finding of the District Forum –
(1) If, the proceeding conducted under Section 13, the
District Forum is satisfied that the goods complained
against suffer from any of the defects specified in the
complaint or that any of the allegations contained in
the complaint about the services are proved, it shall
issue an order to the opposite party directing him to
do one or more of the following things, namely :-
(a) _________
(b) _________
(c) __________
(d) ___________
(e) ___________
“(f) To discontinue the unfair trade practice or the
restrictive trade practice or not to repeat them;
(g) _______
(h) ________
(ha) ________
(hb) To pay such sum as may be determined by it if
it is of the opinion that loss or injury has been
suffered by a large number of consumers who
C.C.No. 322 of 2015 //8//
are not identifiable conveniently.”
9. Rule 10-A of the Consumer Protection Rules, 1987 is also relevant, which is reproduced as under :-
“Rules 10-A. Credit of the fine into the Consumer
Welfare Fund when consumers are not identified conveniently – (1) Where an order is passed by the
National Commission in exercise of the powers vested under clause (hb) of sub-section (1) of section
14 directing the opposite party to pay such amount as
determined by it on account of loss or injury suffered
due to defects in goods complained against or alleged
deficiency of service to a large number of consumers,
who are not identifiable conveniently, such sum shall
be credited by the National Commission in the Consumer Welfare Fund established by the Central
Government under section 12 (c) of the Central Excise
Act, 1944 (1 of 1944).”
10. So the collective reading of the above said provisions of the Consumer Protection Act made it clear that the opposite party has indulged in gross Unfair Trade Practice by charging excess price of the product than the maximum sale price printed on it. The collective reading of Section 14 (f) and 14 (hb) read with Section 2 (b) (iv) clearly reveals that the Forum under the Consumer Protection Act has the jurisdiction not only to direct the opposite party to pay damages and compensation, but it can also order for the removal of deficiency in service and to discontinue the unfair trade practice keeping in view the interest of the consumers, who have approached the Forum and the interest of numerous consumers, who have not approached the Forum.
11. The Hon’ble State Commission, Punjab Chandigarh has also expressed similar view in appeal title as M/S AMARTEX INDUSTRIES LIMITED Versus DR. AWTAR SINGH decided on 8.7.2009. So keeping into consideration the entire circumstances, we find it a case where the opposite party
C.C.No. 322 of 2015 //9//
should be burdened with exemplary costs. In view of this, we allow the complaint and direct the opposite party to pay a sum of Rs.25,000/- for the unfair trade practice adopted by the opposite party with numerous consumers out of which a sum of Rs.10,000/- is awarded as compensation including the costs of litigation to the complainant and the remaining amount of Rs.15,000/- be deposited with the Consumer Legal Aid Fund maintained by this Forum. If in future the opposite party is found indulging in such type of practice, then serious view will be taken by the Consumer Forums before whom the complaints will be filed by the consumers. The opposite party is directed to comply with this order within thirty days from the
date of receipt of a copy of this order, failing which the opposite party will be liable to pay interest at the rate of 9% per annum on the above said amount of Rs.25,000/- from the date of decision till realization. File be consigned to the record room.
Announced (Gurpartap Singh Brar)
26.11.2015 President
(Inderjeet Kaur) Member
