Tamil Nadu

Ariyalur

CC/5/2023

Michael , Senthurai Tlk, Ariyalur Dict. - Complainant(s)

Versus

HMK Groceries (P), 3/129, valappadi, Selam Dt. - Opp.Party(s)

28 Apr 2023

ORDER

                                                                    Date of  Filing         :28/02/2023

                                                                                                                                                 Date of Reservation :26/04/2023

                                                                                                                                                 Date of Order           : 28/04/2023   

         

 

            DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

            ARIYALUR.

 

 

                       PRESENT: Tmt.  S. TAMILSELVI B.A.B.L, :   PRESIDENT

                                               Thiru. N.BALU                B.A., B.L. :   MEMBER I

                                               Tmt.   V.LAVANYA        B.A., B.L. :   MEMBER II

                            

 

         

                                                                                     C.C. No. 5/2023.

 

                                                                        Friday the 28^th day of April 2023.

 

 

 

 

Michael,S/o. Manikam,

Madha  Supper Market, Senthurai Taluk,

Ariyalur District.                                                                         Complainant                                                                                                                         

                                                Vs

 

Proprietor

HMK Groceries (P) Ltd,.

No.3/129, Kattuveppilaipatty, Seshanchavadi Post,

Valapadi, Salem, Tamilnadu- 535111.                                          Opposite Party

 

 

 

 

          This complaint coming before us for final hearing on 26/04/2023 in the presence of Thiru. A.J. Tamizhmurugan counsel on record for the complainant and Opposite party set-exparte, upon hearing the arguments of the complainant and having perused the records and having stood for consideration, this commission passed the following

 

ORDER

 

PREPARED  BY PRESIDENT  Tmt.S. TAMILSELVI

 

1.       The complainant has filed the complaint against the opposite party under section 35 of the Consumer Protection Act, 2019. Directing (i) to refund the advance amount of Rs.10, 000/- received towards the purchase of the Adulteration free Agro food products. Directing (ii) to refund Rs.8, 000/- towards the return of the expiry of the Agro food products, along with 18% interest. Directing (iii) to pay a sum of Rs.50, 000/- for mental agony, loss and mental stress.

 

2.       Brief Averments of the complaint  ; The complainant is carrying on business as a registered business in the Trade name as Madha Super market at Sendurai, Ariyalur District. The opposite party is carrying on the wholesale business of Adulteration Free Agro food products Pvt Ltd, in the name of HMK groceries (P) Ltd., No.3/129 Kattuveppilaipatty, Seshanchavadi Post, Valapadi, Salem, Tamilnadu- 535111.

3.       The complainant had entered an oral agreement with the opposite party for the purchase of the agro product in wholesale and to sell as a retailer from the super market. It was orally agreed by both the parties that the agro product would be returned to the opposite party if the product gets expired after the stipulated period.

4.       The complainant based on the oral agreement on 13/01/2022 paid an advance of  Rs. 10,000/- and on 28/01/2022 paid an amount of Rs. 20,000/- total of Rs.30,000/- through NEFT Bank transaction, for the purchase of the agro food product. Therefore the opposite party after receiving Rs.20, 000/- dispatched the agro food products to the complainant. The List of the products is enclosed as documents.

5.       On 09/02/2022, the agro food product items were on the verge of expiry and it was immediately informed to the opposite party. It was learnt that the opposite party had sent the agro food product items worth 20,000/- to the complainant on the verge of the expiry period of 15 to 90 days. When the issue was informed to the opposite party they informed the complainant to return the agro food products which were unsold before the expiry period and to return back after the expiry date, by promising to send fresh agro food product. It is submitted that the complainant has sold the agro food product in the market worth 12,000/- only within the expiry period and henceforth returned back remaining agro food products worth 8,000/- to the opposite party by courier on 19/06/2022.

6.       The opposite party on receiving the agro food product neither sent fresh agro food product nor refunded the balance amount worth Rs.8,000/-. Several communication were sent to the opposite party to send agro food product or refund the advance amount of Rs.10, 000/- and balance product worth amount of Rs

8,000/- but the opposite party did not heed to the words of the complainant. It is learnt that the opposite party with an ulterior malafide motive and intention has sent the agro food products which was on the verge of expiry period to the complainant, which amounts to Unfair Trade Practice. On 20.08.2022 a legal notice was issued to the opposite party stating the facts, but no reply notice was issued nor was the amount refunded by the opposite party. Hence the complainant chose to file this complaint.

 

7.       On perusal of records and on the basis of the evidence submitted by the complainant, proof affidavit along with exhibits A1 to A8 marked. Written argument filed. Opposite Party Set Exparte and the order has been passed on merits as per section 38(3) (b) (ii) of Consumer Protection Act 2019.

 

8.       Points for Consideration

1. Whether there is Unfair Trade Practice on the part of the Opposite party?

2. Whether there is deficiency of service by the Opposite Party?

3. Whether the complainant is entitled for the relief prayed in the complaint?

 

9.Point No.1: On perusal of material facts and exhibits it is envisaged that the complainant is carrying a registered business in the Trade name of Madha Super Market and the constitution of business is Proprietorship a mode of self employment. It is learnt that the complainant has entered into an oral agreement with the opposite party for Marketing and selling of Adulteration Free Agro Products through their super market in retailer basis. To elucidate their contentions Exhibits are filed. Exhibit A3 cites that an amount of Rs.10, 000/- was paid to the opposite party in the name of Adulteration Free Agro Products pvt ltd., through NEFT transfer on 13/01/2022. As per the pleading and Exhibit A3 of the complainant it is envisaged that the complainant has paid an Advance amount of Rs.10, 000/- to the opposite party (Adulteration Free Agro products pvt Ltd.,) Exhibit A4 reveals that another transaction amount of Rs.20, 000/- was paid to the opposite party for the purchase of the agro Food Products on 28/01/2022. From the  Exhibit A5 it is envisaged that the HMK Home Rack i.e., the opposite party has given a list of 79 items mentioning the quantity and MRP rates after discount the net pay etc., to the complainant where the total bill amount is Rs.20025/-. There is no seal or date in the A5 exhibit, based on the pleadings we presume that it was issued by the opposite party. Exhibit A6 reveals that a rack full of products has been displayed mentioning the opposite party name (HMK GROCERY). Exhibit A7 reveals that a legal notice was issued to the proprietors of the opposite party (HMK GROCERY) calling upon them to refund Rs.18, 000/- or send fresh agro food products. Though the opposite party has received the legal notice, yet they failed to reply to the legal notice.  Subsequently it is learnt that the agro food product items were on the verge of expiry and it was immediately informed to the opposite party. From the pleadings it is envisaged that the opposite party had sent the agro food product items worth 20,000/- to the complainant on 09/2/2022 within the verge of the expiry period of 15 to 90 days. When the issue was raised to the opposite party they informed the complainant to return those agro food products which were unsold and promised to send fresh agro food product. From the pleadings it can be presumed that the complainant has sold the agro food product in the market worth 12,000/- only within the expiry period and returned back remaining agro food products worth 8,000/- to the opposite party by courier on 19/06/2022. This commission clearly opines that transactions have taken place between the complainant and the opposite party.

 

10.     It is perceived from the pleadings of the complainant that the opposite party has not acted according to Principle of Natural Justice. The opposite party has distributed the product for consumption to consumers through the complainant retailer store which were on the verge of expiry, which amounts to Unfair Trade Practice.

 

11.     It is well settled principle of law that in relation to a product any person who is in the course of business imports, sells, distributes for commercial purposes are product sellers under section 2(37)of consumer protection act 2019. The responsibility of a product seller of any product, is to compensate for any harm caused to a consumer by such defective product sold or by deficiency of service, the opposite party come under the purview of Product seller and product liability envisaged under section 2(34) of consumer protection act 2019.

 

12.     Section 2(35) of consumer protection act 2019 product liability action clearly cites that a complaint filed by a person before a District Commission or State Commission or National Commission, as the Case may be, for claiming compensation for the hard caused to him, therefore in the present scenario, the complainant is entitled to claim compensation from the opposite party.

 

13.     Section 2(47)(i)(a)(viii) of consumer protection act elucidates that  refusing to accept the goods and services back or withdraw them and failing to reimburse the payment made for them amount to Unfair Trade Practice, which applies to the present case on hand. Unfair Trade Practice broadly refers to any dishonest, dishonorable, or deceptive trade behavior, as well as commercial deception of goods or services that are continuously sold, that is prohibited by law or has been determined to be significant under the law by a court judgment. Hence this commission opines that the above act of the opposite party attribute to Unfair Trade Practice. Therefore Point No. 1 is answered accordingly.

 

14 .Point No.2: the complainant in spite of returning back certain expired agro food product to the opposite party, they did not fail to send back fresh products as decided through oral agreement nor did they reimburse the amount which amounts to deficiency of service. Regarding other aspects it has been discussed in Point No.1.

 

15. Point No.3.: The complainant has paid Rs. 30000/- to the opposite party which is evident from the transactions marked as Exhibits. After deduction of Rs.12000/- for the sold product, the remaining balance amount of Rs.8, 000/- and advance of Rs.10, 000/- has to be reimbursed to the complainant by the opposite party as per their oral agreement mentioned in the pleadings. Therefore this commission opines that the complainant is entitled to get the amount of Rs.18, 000/- refunded along with 12% interest and direct the opposite party to pay Rs. 10,000/- for deficiency of service and mental agony caused to the complainant and Rs. 5,000/- as penalty for indulging in Unfair Trade Practice for distributing the food products which are on the verge of expiry period. Therefore Point No.3 is answered accordingly. The opposite party has not come forward to contest the case and remains ex party.

 

In the Result the Opposite Party is:-

 

1. Directed to Refund the amount of Rs. 18,000/- with 12 % interest from the date of filing of the complaint within 1 month from the date of the order to the complainant.

 

2. Directed to pay compensation for a sum of Rs.10, 000/- for mental agony and deficiency of service within 1 month from the date of the order to the complainant.

 

3. Directed to pay penalty of Rs.5000/- for indulging in Unfair Trade Practice by distributing food product which are within the verge of expiry period, within one month to the Legal Aid Account of the District Consumer Disputes Redressal Commission, Ariyalur as penalty amount.

 

4. Directed to pay Rs.2, 000/- as cost of complaint.

 

Dictated by president to steno typist, transcribed and typed by him and corrected by president and then consented and pronounced by us, the Friday 28^th day of April 2023.

 

 

  N.BALU                                   V.LAVANYA                                          S.TAMILSELVI

MEMBER 1                                   MEMBER II                                                      PRESIDENT

 

    Complainant side Documents

 

S.no.	Date	Description	Remarks
ExA1	05/09/2018	GST Registration Certificate	Xerox
ExA2	29/12/2016	Aadhaar card of the complainant	Xerox
ExA3	13/01/2022	NEFT Payment to the opposite party	Xerox
ExA4	28/01/2022	NEFT Payment to the opposite party	Xerox
ExA5	03/02/2022	HMK home rack list of Agro food products	Xerox
ExA6		Agro Food Product Photos	Color Xerox
ExA7	20/08/2022	Legal Notice issued by the complainant	Office copy
ExA8	22/08/2022	AD  Card	Original

 

 

List of Witness of the complainant:-

1. Michael (Complainant)

 

List of witness of the opposite party:-

 2.   Nil

 

 

 

  N.BALU                                        V.LAVANYA                                                   S.TAMILSELVI

MEMBER 1                                   MEMBER II                                                      PRESIDENT