FINAL ORDER

Samaresh Kumar Mitra, Member.

            This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Anupam Das praying direction upon the opposite party as incorporated in the prayer portion of the complaint petition.

           The case of the complainant is that the complaint relates to the washing powder WHEEL of sealed packet of 205 gm of price Rs.10/- manufactured by OP No.1 and sold through its distributors and retailers in thousands of shops throughout the district. The complainant used to wash his clothes regularly with the said washing powder manufactured & packaged by the OP no.1, OP No.2 is the distributor and OP no.3 is the retailer from whom the complainant purchased 10 numbers of 205gms packet on 15.2.2014. After using 5 packets of said detergent doubt raised in the mind of the complainant regarding the weight of the packets. So he weighed and found that weight of each packets only 118 gm to 184 gm in sealed packet instead of 205 gm printed on the packet. So it is 87 gm to 18 gm less.  Then the complainant went to the OP No.3 and made oral complaint showing the packets and the said OP weighed and found that each packets weighed 118 gms, 132 gms,163 gms,179 gms &184 gms. The OP No.3 told that he is a small retailer and he purchased the wheel powder from the OP No.2 being the distributor of Op No.1 and handed over a Xerox copy of computerized bill generated by OP No.2 in favour of Op No.3. The complainant approached the OP No.2 with the copy of bills of OP No.2 with the said packets but the OP no.2 refused to entertain and stated that material is supplied by the Hindustan Unilever and for supply of the material he used to get commission. The complainant averred that by selling underweight packets the OP No.1 is playing deceit and deception to the public at large and also committed fraud and adopted unfair means by printing false weight on the packets and supplying too less than the printed one. He also submits that apart from the complainant millions of people are suffering from such unfair trade practice of the OP No.1. So he being a victim of such unfair trade practice filed the instant complaint before this Forum praying direction upon the OP No.1 to pay monetary compensation of Rs.10,00,000/- from the OP for unfair trade practice, litigation cost amounting to Rs.1,00,000/- and permanent injunction restraining the OP members from indulging such unfair trade practice and steps for public awareness in this matter on the cost of OP no.1.

The OP No.1 filed written version denying the allegations leveled against him and averred that the Hindustan Unilever ltd is one of the reputed FMCG Company and he manufactures & markets deferent FMCG goods in India. He also manufactures and markets detergent powder under the name & style “Wheel” across the India. The detergent wheel is marketed by the OP in different quantity at different prices. The opposite party market and sale Wheel detergent washing powder at the price of Rs.10/- per packet containing 200 gm. Before marketing every product this opposite party has measured the product in deferent heads including quantity and quality. Before marketing every product of this OP have been examined on different angle so question of shortage of weight than the weight printed on the packet is not believable at all. The shortage of weight of the material can be happened if the complainant purchased any duplicate /counterfeit packets manufactured by any other Company forging and duplicating the name of the OP. So for proper adjudication of the case the complainant is required to be directed to deposit the alleged five packet of wheel washing powder before this Forum and thereafter the same is required to be sent to the laboratories in accordance with the provision of law to compare the same with the packets manufactured and marketed by the opposite party to ascertain whether the alleged packets are at all manufactured by this opposite party. For the proper adjudication of the case elaborate evidence is required as such the case can’t be adjudicated upon the summary procedure by this Forum. And there is no consumer relationship in between the complainant and the OP. There is no question of providing service to the complainant by any of the opposite parties. The opposite party as a consumer centric Company always have a motto to have satisfied consumer and customers and hence the opposite party is willing to express to replace the products allegedly claimed to be as short weight. Lastly the opposite party would like to clarify that the opposite party is not involved in any unfair trade practice and there is no deficiency of services on its part.             

The opposite party No.3 filed written version in which he admitted that he has been selling the Wheel detergent powder from long after purchasing the same from the distributors and the petitioner is his permanent customer. He also admitted that the petitioner had purchased 10 packets of wheel detergent powder packs/pouches from him and this respondent had purchased the same from the distributor OP No.2 and this is his regular course of business. And averred that the petitioner brought back 5 packets to this respondent within a few days of purchase and complained of less weight and when this respondent verified the weight those packets were weighing too less but this respondent had nothing to do and told the truth of his purchasing from the distributor and to show his bonafideness gave a Xerox copy of the computerized bill issued by OP No.2 to the present petitioner. This respondent is a poor person any how earning livelihood from his small shop and there is no fault or deficiency on his part whatever he purchased he sold the same and the product sold by him was/ is genuine as supplied by the distributor of the OP No.1.    

The complainant filed evidence on affidavit which is nothing but replica of complaint petition.

The OP No.1 filed evidence on affidavit in which she stated that Hindustan Unilever limited is a leading Fast moving consumer goods company having an annual turnover in the order of over Rs.30000/- crores and is inter alia engaged in the manufacture, distribution and sale of consumer products ranging from home and personal care products , colour cosmetics, deodorants, fragrances to food products sold under various popular brand such as Rin, Wheel, Lifebuoy, Ponds, Surf, Annapurna, Knorr, Brooke Bond, Bru, Kwality Walls etc. OP factories adopted strict system including the worldwide renowned HACCP system to ensure the quality and quantity of the products from its factory. At every stage of the manufacturing process, these Critical Control Points enable in assessing whether the product is being manufactured as per the specifications. Sec.39(4) of the Standard of Weight and Measures Act which also applies to detergent, namely ‘Wheel Soap Powder’ as in this case and sec.11(4) of the Standard of Weight and Measures Rules,1977 and the IV schedule, Sec39(4) provides that the Central government may be rules, specify the commodities the weight or measure of which is likely to increase or decrease beyond the prescribed tolerance limits by reason of climatic variations and it shall be lawful for the manufacturer or packer of the commodity so specified. She also averred that all the products undergo stringent quality/ quantity control checks. The shortage of weight of the material can happen if the complainant purchases any duplicate/counterfeit pack manufactured by any other company after forging and duplicating the name of Hindustan Unilever Ltd.

OP No3 also filed evidence on affidavit in which he stated that he used to sale the wheel detergent powders of various weights manufactured by respondent No.1. he also assailed that the items which are under weight for this case has been stated  and which he sold the complainant under proper receipt were purchased by him from respondent No.2.  is in the  case record. He also alleged that the Computer bill mentioning 200gm of respondent No.2 in  his favour is concerned it is the fault of respondent No.2 who has set his Computer in such a manner but in fact the respondent No.1 manufactured and sold wheel detergent packets weighing 205 gm as mentioned on the packets  and price written as Rs.10/- only.

The argument advanced both the parties and heard in full. The complainant and OPs both filed brief notes of argument which are taken into consideration for passing final order.   

From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainant is a ‘Consumer’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

    In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Sri Anupam Das is a ‘Consumer’ of the opposite party?

 From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(i) of the Consumer Protection Act,1986. The complainant herein is the customer of the OP, as the complainant purchased the packet of wheel detergent powder from the OP No.3 and OP No.2 is the distributor of OP No.1 manufacturing Company of the said product.  So the opposite party being seller, distributor and manufacturer are responsible for any defect revealed by the complainant in the product.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

     Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.11,00,000/- for loss sustained by the complainant and as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.         

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

        The case of the complainant is that he purchased 10 packets of wheel detergent powder manufactured by the OP No.1 from the retailer OP No.3 who purchased the same from the OP No2 being the distributor of OP No.1. During the period of usage the complainant found that the weights of the packets are not of 205gms but less than the marked quantity. So he approached the OP No.3 and enquired about such less quantity then the OP No.3 by showing the purchase receipt of OP No.2 and confirmed that he sold the same item to this complainant which he bought from OP No.2 distributor of opposite party no.1. Being aggrieved the complainant preferred the recourse of this Forum.

      The OP No.1 denied the allegation leveled against her and stated that the OP No.1 Company has no such product of 205gms wheel detergent which the complainant purchased from the OP No.3 and produced before this Forum. By producing a packet of wheel detergent of 200gm on 29.9.2015 before this Forum the opposite party No.1 demanded its authenticity regarding quantity & quality. She also demanded that Hindustan Unilever limited is a leading Fast moving consumer goods company having an annual turnover in the order of over Rs.30000/- crores and is inter alia engaged in the manufacture, distribution and sale of consumer products ranging from home and personal care products, colour cosmetics, deodorants, fragrances to food products sold under various popular brand such as Rin, Wheel, Lifebuoy, Ponds, Surf, Annapurna, Knorr, Brooke Bond, Bru, Kwality Walls etc. OP factories adopted strict system including the worldwide renowned HACCP system to ensure the quality and quantity of the products from its factory. At every stage of the manufacturing process, these Critical Control Points enable in assessing whether the product is being manufactured as per the specifications. The OP No.1 in his written version as well as evidence on affidavit assailed that he manufacture & market 200gm wheel powder and denied the purchased 205 gm wheel powder of this complainant from the OP No.3 of his product.

     It is pertinent to mention that the Complainant never approached the OP No.1 Company even through writing about the incident or called in the phone number stated in the packet regarding any grievance. Apart from seeking any relief from the Company, he filed the instant complaint before this Forum praying a huge amount compensation of Rs.10,00,000/- for unfair trade practice and litigation cost of Rs.100,000/-.

   It appears from the Xerox copy of invoice dated 11.02.2014 of opposite party No.2 that opposite party No.2 sold WHL  ATV  ORNG 200G  A+ of MRP 10.00 Wt. 12000/- gm  for  Rs.524/- including taxes and discounts to retailer Patra Stores, Swetpur, Nawpara (OP.3) and the OP no.3 paid in full.  Another Xerox copy of Tax In Voice/ Seller Copy of whole seller Laxmi Narayan Traders of 167, N.S. Road, Kol-7 in favour of Patra Stores ( OP.3) Active wheel of 10/- sold for Rs.530/- on 13.02.2014. Lastly a Xerox copy bill of opposite party No.3 dated NIL in which it is clears that sold item is 10 packet wheel surf of 205 gm each @ Rs.10/- per packet for Rs.100/- only  and the name  on the receipt has written as Sujit Kumar Patra.  From the above observation it is clear that OP no.2 sold 12000gm of 200gm packet of wheel powder manufactured by Hindustan Unilever Ltd. to the opposite party no.3.  Apart from the OP No.2, the OP No.3 purchased wheel powder from Laxmi Narayan Traders & others. The complainant purchased the wheel powder from the OP No.3 assuming that the product is manufactured by the OP No.1. The report dated 25.02.2015 of Assistant Controller of Legal Metrology speaks that the Measured quantities are 187.40 gm, 120.64gm,134.64gm,165.38gm&178.58gm instead of 205gm each. So by adducing evidence  in respect of quantity the complainant proved that the packets containing the powder is of less quantity than the marked amount as it is checked by the  Assistant Controller of Legal Metrology, Govt. of W.B. in presence of Ld. Advocate of both sides. But from the case record there is no purchase receipt/cash memo in the name of the complainant issued by the opposite party in respect of purchasing the wheel detergent of quantity 205gm. The OP No.3 also failed to provide the purchase receipt of 205gm wheel powder as a consequence this Forum could not come into conclusion that the disputed wheel packets are purchased from the distributor of OP No.1.  The complainant also failed to produce any money receipt of opposite party in his name, so how the complainant became the  consumer of opposite party. The complainant failed to provide iota of evidence to complete the chain from which this Forum come into conclusion that the impugned wheel packets are manufactured & marketed by the OP No.1 Company. After a careful consideration and perusing the written version as well as evidence of the OP No.3 it is crystal clear that the opposite party No.3 is fully aware regarding the source of impugned packets and he tried to sift his liability upon the OP no.1. In the instant case the complainant prayed for a direction upon the opposite party No.1but the complainant failed to prove the liability of the opposite party No.1 by producing documents and hearing the arguments as such the complaint petition is liable to be dismissed.

  Having considered the facts and circumstances of the case and the rival contentions of the Ld. Counsel for the parties, we find no force in the contention raised on behalf of the complainant. From the act and conduct of the opposite parties it is fully established that there is no deficiency of service on the part of the opposite party no.1 as such the prayer of giving direction upon the opposite party no.1 is liable to be dismissed.

 Accordingly, the complainant fails to inspire confidence in the mind of the Forum regarding his grievances against the Ops. The case fails miserable for want of sufficient documentary as well as oral evidence.    

 4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

   The discussion made herein before, we have no hesitation to come in a conclusion that the complainant has failed to prove his case and the opposite Party is not liable to pay any compensation & other reliefs as prayed in the complaint petition.

ORDER

        Hence, it is ordered that the compliant case No. 92/2014 be and the same is dismissed on contest without cost.

        Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.