BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.402/2013

DATED ON THIS THE 7^th October 2016

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri Devakumar.M.C.

Member

1.     The complainant filed the complaint under section 12 of the C.P.Act 1986, against the opposite parties, alleging unfair trade practice and seeking a direction to pay compensation of Rs.50,000/- and to impose penalty of Rs.5,000/- and to deposit the same to the Consumer Welfare Fund and such other reliefs.
2.     The complainant purchased fertilizer from opposite party No.1, on 15.11.2012, on payment of Rs.4,416/-.  Noticing the less weight in Nagarajuna Urea (of opposite party No.2) bag, the complainant got checked the exact weight of the fertilizer bag.  On examination, the Legal Metrology authority endorsed that the bag was weighing only 36.2 kgs as against 50 kgs, mentioned on the bag.  Aggrieved by the collection of cost for 50 kgs fertilizer, the complainant has filed the complaint, seeking reliefs.
3.     The opposite party No.1 despite of service of notice, remained absent, hence placed exparte. 
4.     The opposite party No.2 filed its version denying the allegations as false.  The opposite party No.2 submits, when the complaint got doubt relating to the weight of the bag, he should have rejected the bag.  Now, it is not responsible for any complaint of underweight, once the bag is delivered/taken away from the shop.  Further opposite party No.2 submits, it has settled the matter through opposite party No.1, as such, the complainant got issued a letter stating the same on 15.03.2013, as full and final settlement.  Now the complainant has come with this complaint to make wrongful gain only.  Hence, prays for dismissal of the complaint.
5.     The complainant filed his affidavit evidence and relied on several documents.  The opposite party No.2 not lead its evidence. 
6.     The complainant filed his written arguments.  The opposite party No.2 not addressed arguments.  On perusing the material on record, the matter posted for orders.
7.     The points arose for our consideration are:-

1. Whether the complainant establishes the unfair trade practice and deficiency in service by the opposite parties, in delivering or selling an underweight fertilizer bag, though they collected cost for a bag of 50 kgs fertilizer manufactured, supplied by opposite party No.2 and sold by opposite party No.1 and thereby the complainant is entitled for the reliefs sought?
2.  What order?

8.    Our findings on the aforesaid points are as follows:

Point No.1 :- Partly in the affirmative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

9.    Point No.1:- The complainant, an agriculturist, purchased 11 bags of fertilizer for his land, on 15.11.2012, by paying a sum of Rs.4,416/- from opposite party No.1, dealer and retailer of opposite party No.2 company.  The opposite party No.1 acknowledged the payment by issuing receipt.  While taking the bag, the complainant noticed a bag was under weight and brought, the same to the notice of opposite party No.1, who refused to accept the objection of complainant.
10. Later, the complainant got checked the bag by the Inspector of Legal Metrology department.  On examination the authority issued an endorsement stating the bag was weighed only 36.2 kgs, instead of 50 kgs as mentioned on the bag.
11. Aggrieved complainant, caused legal notice, alleging the unfair trade practice and deficiency in service against the opposite parties and sought for the reliefs.
12. The opposite party No.2 contended that, the complainant should not have taken the delivery of the fertilizer bag when he got doubt regarding weight of the bag.  Further, contended that it is a reputed company indulged in manufacture and supply of quality fertilizer to its customer.
13. On receipt of the legal notice from the complainant.  Opposite party No.2 has deputed its officials to verify the issue and they have settled the matter with the complainant, on 15.03.2013 and the same has been acknowledged by the complainant vide letter and the same is forwarded to it, by opposite party No.1, stating the matter has been settled on payment of the amount as full and final settlement of complainant’s claims.  Subsequently, the complainant has come up with this complaint to make wrongful gain only.  Hence, prays for dismissal of the complaint.
14. The complainant established the purchase of fertilizer bags from opposite party No.1 on payment of Rs.4,416/-, on 15.11.2012.  The under weight of the bag has been examined by the Legal Metrology Authority and certified that the bag was under weight.  This is certainly an unfair trade practice and deficiency in service on the part both opposite parties. 
15. The opposite party No.2 does not place any evidence to establish that the complainant has acknowledged the settlement.  Further, the opposite party No.2 does not speak relating to the under weight and cause for such variation in weight of the fertilizer in the bag.  Therefore, we opine that the matter has not been settled as contended by opposite party No.2.  Accordingly, the opposite parties are jointly and severally shall make good the loss and provide suitable compensation to the complainant.  Accordingly, the point No.1 is answered partly in the affirmative.   
16. Point No.2:- In view of the above observations, we proceed to pass the following

:: O R D E R ::

1. The complaint is allowed in part.
2. The opposite party Nos.1 and 2 are hereby jointly and severally, directed to pay the cost of fertilizer i.e. Rs.77.83 to the complainant, within 60 days of this order. 
3. The opposite parties shall jointly and severally shall pay Rs.1,000/- compensation for the unfair trade practice and deficiency in service, to the complainant, within 60 days of this order.  On failure, shall pay interest at 12% p.a. on the said sum of Rs.1,078/- , until payment made.
4. In case of default to comply this order, the opposite parties shall undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
5. Give the copies of this order to the parties, as per Rules.

(D