Punjab

Ludhiana

CC/16/60

Krishan Partap - Complainant(s)

Versus

Grasim Ind. Ltd. - Opp.Party(s)

K.P.Pathak Adv.

02 May 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

                                                          Consumer Complaint No. 60 of 20.01.2016

(After revival of sine die adjourned complaint   No.200 of 7/3/2012)

Date of Decision    :   02.05.2016    

Krishan Partap Pathak, Advocate s/o Late Pt.Ram Rakha Pathak, Advocate, aged about 75 years resident of B-I-1034, Civil Lines, Near Dandi Swami Chowk, Ludhiana.

….. Complainant

Versus

1.M/s Grasim Industries Ltd., now known as M/s UltraTech Cement Limited (White Cement Div.), having its Regional Office at SCO 215, Ist Floor, Sector 40-D, Chandigarh, through its Regional Manager.

2.M/s Grasim Industries Ltd., now known as M/s UltraTech Cement Limited (White Cement Div.), having its Regional Office: IInd Floor, DCM Building, 16 Bara Khamba Road, New Delhi, through its Regional Manager.

3.M/s Aggarwal Traders, Chowk Dandi Swami, Civil Lines, Ludhiana, through its Proprietor Sudarshan Aggarwal.

4.M/s Ultra Tech Cement Ltd.(impleaded vide order dated 18.6.2012)

…Opposite parties

 

    (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS.BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                       :        In Person.

For Op1, OP2 & Op4     :        Sh.Alok Mohindra, Advocate

For OP3                         :        None.

 

PER G.K.DHIR, PRESIDENT

 

1.                          Complainant, an Advocate by profession, claims to have purchased 3 bags of Birla Wall Putti from Op3, a dealer of OP1 and OP2, vide bill No.34036 dated 6.1.2010 for a sum of Rs.1380/-. Complainant engaged painter Shri Ranjit Kumar for doing the painting job on building bearing No.B-I-1034, Civil Lines, Ludhiana. On recommendation of said Ranjit Kumar, complainant purchased the Birla Wall Putti. After receipt of the bags, the said painter immediately opened 3 bags and took out the painter tokens of worth of Rs.45/- per token. These 3 painter tokens from three bags were extracted by Sh.Ranjit Kumar painter in the presence of the complainant. On enquiry from the said painter by the complainant, the latter came to know that painter tokens are always meant for the painters. Further said painter disclosed that he will get these painter tokens encashed from OP3. Worth of painter token being Rs.45/- per bag was almost 10% of the cost of the bag. When the complainant claimed that he is entitled for the benefit of said tokens of worth of Rs.45/- each, then painter insisted qua his entitlement. Complainant snatched the above said three painter tokens from the painter and thereafter, said painter refused to do the painting job, despite the fact that complainant had vacated three rooms for performance of the painting work. On refusal by Sh.Ranjit Kumar painter, complainant engaged another painter of name of Babblu. Legal notice dated 12.1.2010 was served on OP3 for calling upon him to pay Rs.1 lac as compensation for causing mental harassment, agony and tension. In response to that notice, Op3 claimed that benefit of painter tokens is provided by the OP1 and OP2 to the painter and he being dealer has nothing to do with these schemes. Legal notice dated 27.1.2010, thereafter was served on OP1 and OP2 on the same lines and in response to that reply dated 18.3.2010 through Sh.K.S.Chahuan, Advocate was received, on which, the complainant got knowledge regarding unethical norms of trade and practice adopted by OPs. As per received reply, the price of painter tokens money goes to the painters and not to the consumer. It is claimed that in case, the company is so serious about the well being of the painter community, then they should be paid the amount, if any, from their own pockets. Prayer made for calling upon OPs to stop the unethical practice of charging of Rs.45/- extra per bag. By pleading deficiency in service and unfair trade practice by OPs, prayer made for grant of compensation of Rs.5 lac on account of mental harassment, agony and tension to the complainant. Even prayer made for stopping the scheme of painter tokens. Litigation expenses of Rs.10,000/- even claimed.

2.                Vide order dated 18.6.2012, M/s Ultra Tech Cement Ltd., was ordered to be impleaded as party after recording the statements of complainant and counsel for OP1 and OP2. In this way, M/s Ultra Tech Cement Limited impleaded as OP4. Complainant was directed to file the amended complaint, which was filed by the complainant on 5.7.2012 without mentioning M/s Ultra Tech Cement Limited as a party. However, written statement on behalf of M/s Ultra Tech Cement Limited filed in joint names with OP1 and OP2 by mentioning as if written statement filed by OP1, OP2 & OP4.

3.                In joint written statement filed by OP1, OP2 and OP4, it is pleaded interalia as if the complaint is not maintainable being barred by limitation; complainant has no cause of action because he has not suffered any loss and he has no reasonable ground available for filing the complaint. It is further pleaded that there is no deficiency in service on the part of OPs. Rather, in view of involvement of intricate question of law and facts, this Forum alleged to be having no jurisdiction. Complaint alleged to be filed with malafide and greedy intention for extracting compensation. Legal notice dated 27.01.2010 was served for seeking compensation of Rs.1 lac, but complaint filed for seeking compensation of Rs.5 lac and as such, this act and conduct of complainant alleged to be disentitling him from seeking any relief. Ops do not include the cost of token or the amount to be reimbursed against the token, in the    price of the cement bag. The token amount is to be reimbursed by the company from its own profits. The scheme provides social service owing to corporate responsibility towards the society. No extra amount is charged from the customers under the scheme because company shares its profits with the painter community for its upliftment. The painter, with whom, the complainant held discussions have not been impleaded as a party and as such complaint alleged to be bad due to non-joinder of necessary party. Complainant kept of waiting for two years even after receipt of reply dated 18.3.2010 for filing the complaint. Purchase of 3 bags of Birla Wall Putti by the complainant from OP3 not denied. Painter tokens are put in the cement bags under a scheme initiated by OPs for providing incentive and monetary help to the painter community. Even other paint companies provide such schemes and as such, there is no illegality or unfair trade practice adopted in floating of such scheme. The scheme is floated for self employment of the painters, so as to provide certain financial benefits for the under privileged class of the society. It is claimed that attitude of the complainant is negative because he instead of being appreciative the initiatives of the OPs, trying to snatch meager benefits provided to the painters. Admittedly, complainant sent legal notice dated 27.1.2010 which was replied by OP1 and OP2 on 18.3.2010. Factual position referred above was explained through this reply and as such,  no mental        harassment, agony and tension ever caused to the complainant. Each and every other averment of complaint denied by praying for dismissal of complaint with costs.

4.                In separate written statement filed by OP3, it is admitted as if the complainant purchased three bags of Birla White Putti from OP3. Rather, it is claimed that OP3 recommended the name of Babloo painter for painting job of the building of the complainant. Admittedly, legal notice dated 12.1.2010 was served by the complainant on OP3, but that was duly replied by explaining above referred position. OP3 is an agent of OP1 and OP2 and compensation can be asked from OP1 and OP2 alone. OP3 is not liable in any respect because his action of selling the products does not amount to any unfair trade practice. Rather, it is claimed that OP3 has been unnecessarily dragged in the present litigation.

5.                Complainant to prove his case tendered his affidavit Ex.CW1/A along with documents Ex.C2 to Ex.C4 and then closed the evidence.

6.                On the other hand, counsel for OP1, OP2 and OP4 tendered in evidence affidavit Ex.RW1/A of Sh.Manvinder Singh Sahni, the State Head of Punjab of Ultra Tech Cement Limited along with documents Ex.R1 to Ex.R3 and thereafter, closed the evidence.

7.                In order to rebut the case of complainant, counsel for the OP3 tendered in evidence affidavit Ex.RW3/A of Sh.Sudarshan Aggarwal, Proprietor of OP3 and then closed the evidence.

8.                          Written arguments submitted by the complainant alone. Oral arguments of counsel for the parties heard. Records gone through minutely. 

9.                Undisputedly, three bags of Birla White Putti were purchased by the complainant from OP3 on 6.1.2010 vide bill No.34036 for a consideration of Rs.1380/- Even it is not disputed that three painter tokens of worth of Rs.45/- per token were contained in these three bags.

10.              Bone of contention remains as to whether amount of Rs.135/- of these three painter tokens of worth of Rs.45/- each charged by the OPs amounts to unfair trade practice or not. It is the case of OPs that worth of these painter tokens of Rs.45/- each shared by OP1, OP2 and OP4 from its own profits and no extra burden put on    the customers including the complainant.  Through  reply dated 18.3.2010 submitted by OP1 and OP2 to the complainant in response to his notice Ex.C3, it is claimed as if a scheme is evolved by manufacturer to provide financial assistance to labour class or painter community. It is vehemently contended by Sh.Alok Mohindra, Advocate representing OP1, OP2 and OP4 that said scheme meant for helping labourer in self employment and as such, the scheme does not put any burden on the customers. In support of these contentions, counsel for  OP1, OP2  and  OP4 has placed reliance     on law laid down in case titled as H.M.M.Ltd. vs. Director General, Monopolies and Restrictive Trade Practices Commission-1998 AIR(SC)2691. The Hon’ble Apex Court of country in this case held that if a scheme is evolved for passing prize benefits to the buyers in Delhi City, then virtually the same scheme floated for promoting goodwill of the company, and same does not amount to unfair trade practice. It was held in this cited case that expenditure made on prizes was insignificant in comparison to the one borne on advertisement. These observations were made by the Hon’ble Apex Court of the Country by keeping in view the expenditure of Horlicks company on advertisement in 1984-85 and 1985-86 as Rs.2,33,33,637/- and Rs.2,96,69,208/-, but the expenditure on prizes under the said scheme was to the tune of Rs.52,250/- only. Keeping in view these figures in mind, it was held in Para no.11 of the above cited case that appellant company was right in stating that no part of the comparatively insignificant expenditure on the prizes had been recouped from the consumers of Horlicks. So, virtually the benefit of the prizes scheme in the reported case was passed to the consumers and not to an intervening person or group of persons. That is not the position in the case before us because benefit passed to the painter, which is 3^rd party to the contract of purchase of wall    putti by the complainant from Ops.

11.              Section 2(nnn) of the Consumer Protection Act, 1986 defines ‘Restrictive Trade Practice” which describes as under:-

“Restrictive Trade Practice means a trade practice which tends to bring about manipulation of price or its conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include………...”

12.              Present case is covered by sub clause 9(b) of Section 2(1)(nnn) of the Act because here consumer required to avail services of painter in whose hands the painter token goes. The price of the painter tokens encashable by the engaged painter and not by the purchaser. So, virtually restrictions placed on purchaser to provide the painter tokens to the painter, so that he may get the amount of painter tokens encashed. So, virtually unjustified restriction placed on the purchaser, while passing over the benefit of the encashment of the painter tokens to painter.

13.              As per law laid down in case of Alekzander Prabhu vs. Reckitt and Colman of India Ltd.-II(2001)CPJ-44(MRTP), if there was increase in the price of  a product under circumstances that given free of charge gift becomes part of the increased price, then it amounts to unfair trade practice. In this case before us also as the price of Rs.45/- per painter token, found to be added in the costs payable by the purchaser and as such, virtually an unfair trade practice adopted by the OPs in matter of passing benefit of encashment of painter tokens to  painter at the cost of the purchaser. Facts and figures not disclosed by the Ops as to how worth of the painter tokens shared from the profits of the manufacturer. In the absence of disclosure of those facts and figures, it has to be held that virtually the painter token of worth of Rs.45/- put in each bag of the Birla White Putti for recovering the price thereof from the customer/purchaser. So not only the restrictive practice, but also unfair trade practice adopted by the OPs in passing of benefit of encashment of the painter tokens worth to the painter.Putting of the painter tokens in each box of the wall putti supposed to be within the knowledge of beneficiary or promoter of the scheme and not to that of purchaser/customer. In view of that manufacturers/dealers virtually evolved a scheme for the benefit of painter community at the cost of customer/purchaser of the Wall Putti.  That unfair trade practice must be stopped by the OPs. In view of adoption of the unfair trade practice certainly complainant has to shell out Rs.135/- in excess of the actual price of three purchased bags of Birla White Putti. As the earlier engaged painter refused to do the job at house of the complainant at the time, when complainant vacated three rooms and as such, complainant suffered mental tension and harassment, for which, he is liable to be compensated.

14.              It is vehemently contended by Sh.Alok Mohindra, Advocate representing OP1, OP2 and Op4 that complaint is barred by limitation because purchase of three bags of Birla White Putti took place on 6.1.2010, but the complaint originally filed on 7.3.2012 and that is beyond the period of two years from the accrual of cause of action. That submission of counsel for the OPs has no force because after going through allegations levelled in  para no.3 of the complaint and supporting affidavit, it is     made out that the complainant got knowledge of insertion of painter tokens in the bags as and when those were opened by the engaged painter Mr.Ranjit Kumar. As on opening of those bags after 3-4 days of the purchase, complainant after snatching those painter tokens from said Ranjit Kumar got knowledge of this scheme and that is why, he served legal notice Ex.C3 on dealer on 12.1.2010. It was after receipt of reply Ex.C4 dated 19.1.2010 that complainant got knowledge about the scheme of insertion of painter tokens in the bags and that is why he served legal notice dated 27.1.2010 on Op1 and OP2. Reply to that notice was submitted by OP1 and OP2 on 18.3.2010 through Sh.K.S.Chouhan, Advocate as per assertions of the complaint and the supporting affidavit Ex.CW1/A. Copy of that reply dated 18.3.2010 is available in the file of this Forum. So virtually complainant got knowledge of practice of adoption of unfair trade practice on 18.3.2010, when he received reply from the counsel of OP1 and OP2. So virtually the complaint has been filed within 2 years from the date of actual knowledge of scheme in question from the mouth of the OP1 and OP2 through reply submitted by them on 18.3.2010. Complaint being filed on  7.3.2012  as such,    is within period of 2 years from the date of actual knowledge of adoption of          unfair trade practice by the Ops.

15.              If complainant remained silent as to whether he applied for reimbursement of painter token amount, then the same does not matter because complainant served legal notice on OP1 to OP3 as referred above, which shows that complainant actually did not remain silent qua the unfair trade practice adopted by the Ops. It was for Ops to prove that price of painter tokens not included in the cost/purchase of the bags of Birla White Putii by producing on record the data of  earned profits and costs of the production of Wall Putti as well as details of proportion of shares of profits disbursed to the painters through scheme in question. That data not provided by Ops and as such, bare arguments by counsel for Ops has no force that corporate paying the painters from its own pockets.

16.              If in Ex.R2, the actual price of the wall putti per bag shown as Rs.505.75P,then worth of three purchased bags comes to Rs.1517.25P(1517 Rs.25NP). However, as per case of complainant, he paid Rs.1480/- as price of three purchased bags. Even if the complainant has paid the less amount than one mentioned in the price list Ex.R2, despite that price list Ex.R2 does not at all show that painter token amount is included in the MRP of Rs.505.75P. Non disclosure of the same in Ex.R2 leads to the inference as if customer/complainant was kept in dark about the scheme of paying Rs.45/- per bag to the painter. Charging of less amount per bag from the customer than the MRP is in the discretion of vendor/manufacturer. However, in case such practice of charging of less price than the MRP adopted by OPs, then virtually the customer is kept in dark about the manner of fixation of price per bag. That has been done in this case. That is also an unfair trade practice. Though weight of Putti fine 20 kg with token 10 mentioned in Ex.R2, despite that description of the painter token is not given in the Ex.R2. In view of non giving of description of painter token in Ex.R2, it has to be held that customer was kept in dark as to what is meant by the use of word token in Ex.R2. So, virtually consumer/customer made to purchase the wall putti with scheme of hidden token. Putting of condition on purchase of wall putti bags with painter token virtually amounts to calling upon the complainant to purchase the bags of putti with condition of availing services of painter, in whose hand the token goes. That amounts to putting of condition precedent in availing services of painter and as such, the same is restrictive trade practice. For curbing that restrictive trade practice, the complainant entitled to refund of paid amount of Rs.135/- from the OPs and even the complainant entitled for compensation for mental harassment of Rs.5000/- and litigation expenses of Rs.2000/-.

17.              Therefore, as a sequel of the above discussion, the present complaint allowed in terms that OPs will refund the excess charged amount of Rs.135/- and will pay compensation for mental harassment of Rs.5000/- and litigation expenses of Rs.2000/- to the complainant. Compliance of these directions be made within 30 days from the date of receipt of copy of this order. Liability of OPs will be joint and  several. Copies of order be supplied to the parties free of costs as per rules.

18.                        File be indexed and consigned to record room.

 

                                      (Babita)                            (G.K.Dhir)

                              Member                            President

Announced in Open Forum

Dated:02.05.2016

Gurpreet Sharma.