BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 8^th DAY OF APRIL 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This complaint has been filed under Section 12 of C.P.Act, 1986 (herein under referred as an Act) for the following reliefs against the OPs:-

To direct M/s Mondelez India Foods Private Limited (Formerly Cadbury India Ltd.,) to take strick action against M/s Mondelez India Foods Private Limited and compensate between 20 lakhs to 50 lakhs.

2. The case set up by the complainant in brief is as under:-

On 8^th October, 2016 at 6.42 PM he has purchased Cadbury fruit and nut chocolate from the shop of OP No.2 by paying Rs.89/-.  That his niece opened the wrapper of the chocolate to eat on 12^th October, 2016, they found live worms crawling on the chocolate.  Immediately, he filed a complaint with customer care of OP No.1.  Mr.Devid representative of OP No.1 got registered all the details and assured that Cadbury will surely get back to the complainant.  Mr.Devid asked the complainant to hand over the chocolate bar, but he refused to do so.  Despite E-mails dated 20^th October, 2016 the OP No.1 failed to take action.  The OP No.1 allowed Cadbury chocolate bar with live worm crawling on the chocolate.  This act of the OPs amounts to deficiency of service and caused immense stress to the complainant and his family members.  Hence, this complaint claiming Rs.20 lakhs to Rs.50 lakhs compensation and direct the OPs to take action.  

3. After receipt of notice, the OPs appear and OP No.1 filed version.  No version is filed by OP No.2.

4. The OP No.1 contends that the complaint is frivolous, unwanted and divide of merits.  Claiming Rs.20,00,000/- and above as a compensation against the retail price of Rs.89/- for the chocolate bar is exorbitant.  The OP No.1 has taken all the precaution while manufacturing and packing the chocolate bar.  There is no deficiency of service.  In response to the E-mail of the complainant, representative of OP No.1 had contacted the complainant.  OP No.1 requests to dismiss the complaint.

5. The complainant filed affidavit evidence and relies on 10 documents.  The OP No.1 filed affidavit evidence of Assistant Manager and relies on one document.  Heard the arguments and perused the records.

6. The following points arise for our consideration

1. Whether District Consumer Forum had pecuniary jurisdiction to entertain the complaint on the date of filing the complaint i.e. 26.10.2016 and whether complaint cannot be continued under new C.P.Act, 2019?
2. Whether the complainant proves deficiency of service on the part of OPs?
3. Whether the complainant is entitled to relief mentioned in the complaint?
4. What order?

8. Our answers to the above points are as under:

       Point No.1:  In the negative.

      Point Nos.2 and 3: Do not survive for consideration

      Point No.4: As per final orders

REASONS

9. Point No.1:  It is undisputed fact that the complainant has purchased a goods worth Rs.7,004.01  from OP No.2 including two Cadbury fruit and nut chocolate worth Rs.89/- each.  It is also admitted fact that Cadbury fruit and nut chocolate bar is the product of OP No.1.  The complainant has produced the photos showing live worms over the chocolate.  The complainant claims compensation of Rs.20 lakhs to Rs.50 lakhs.
10. According to the allegations made by the complainant, his evidence including documentary evidence that the complainant has purchased a Cadbury fruit and nut chocolate worth Rs.178/- each costing Rs.89/-.  But, the complainant claims Rs.20 lakhs to Rs.50 lakhs as compensation.  Even claim of Rs.20,00,000/- as compensation is taken into consideration, the value of the purpose of pecuniary jurisdiction would be Rs.20 lakhs + Rs.89/- = Rs.20,00,089/-.  At this stage, it is relevant to refer Section 11(1) of C.P.Act, 1986 as complaint has been filed under Section 12 of C.P.Act, 1986 on 26.10.2016.
11. The Section 11(1) of C.P.Act, 1986 which read thus:-  

11(1): Jurisdiction of the District Forum: (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed (does not exceed rupees five lakhs).  

12. According to the above provision, the then District Forum had pecuniary jurisdiction up to Rs.20,00,000/-. If the value of chocolate and compensation claimed Rs.20 lakhs to Rs.50 lakhs are taken into consideration, the value for the purpose of pecuniary jurisdiction was more than Rs.20 lakhs.  Under such circumstances, the complaint filed before this Forum on 26.10.2016 was not maintainable for want of pecuniary jurisdiction.
13. The Hon’ble National Commission in the following two decisions, categorically ruled that in order to ascertain the pecuniary jurisdiction, the value of the goods + compensation shall be value for the purpose of pecuniary jurisdiction.

1. 2022 (1) CPR 363 (NC) in the matter between Apoorv Bansal Vs. M/s Vatika Ltd.,
2. 2022 (1) CPR 572 (NC) in the matter between Amit Arora and another Vs. Vatika Limited.

14. It is relevant to refer para 8 and 9 of the 2^nd decision which read thus:-

Para 8:- The first issue which needs consideration pertains to the pecuniary jurisdiction of the National Commission to entertain the instant consumer complaint.  Section 21 (a) of the Consumer Protection Act, 1986 deals with the pecuniary jurisdiction of the National Commission and it provides that National Commission shall have jurisdiction to entertain the complaints where the value of goods or services and compensation, if any, exceeds ₹1.00 crore.  Now, the question is what is the value of service offered by the opposite party to the complainant.   In this regard, it is pertinent to mention that Larger Bench of this Commission in the matter of Ambrish Kumar Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd. in Consumer Case No. 97 of 2016  vide its order dated 07.10.2016 has observed as under:

"It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds ₹ 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.  For instance if a person purchases a machine for more than ₹1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is ₹10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum.  Similarly, if  for instance, a house is sold for more than ₹1.00 crore, certain defects are found in the house, and the cost of removing those defects is ₹5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than ₹1.00 crore." 

Para 9:-   In view of the above, it is clear that for the purpose of pecuniary jurisdiction, the value of services hired or availed plus compensation shall be the value for the purpose of pecuniary jurisdiction.  Admittedly, the subject apartment was allotted to the complainant in consideration of ₹1,50,50,925/- to be paid as per the payment schedule. Thus, it is clear that value of the services promised by the opposite party was more than ₹1.00 crore.  Therefore, in our considered view, this Commission has jurisdiction to entertain the complaint.

Recently, in the case of Renu Singh vs. Experion Developers Private Limited" and other connected matters" - Consumer Complaint No. 1703 of 2018 - decided on 26.10.2021, a Bench of five Members of this Commission while examining the correctness of the law laid down in .Ambrish Kumar Shukla's case (Suupra) has held as under:-

"  A Bench of this Commission referred the following issues relating to pecuniary jurisdiction under the Consumer Protection Act 1986 (in short the Act) for consideration by a larger Bench, in First Appeal No. 166 of 2016 and other connected appeals, vide order dated 11.08.2016:-

(i) In a situation, where the possession of the housing unit has already been delivered to the complainant and may be sale deed etc. also executed, but some deficiencies are pointed out in the construction/ development of the property, whether the pecuniary jurisdiction is to be determined, taking the value of such property as a whole, or the extent of deficiency alleged, is to be considered for the purposes of determining pecuniary jurisdiction.

(ii) Whether the interest claimed on such value by way of compensation or otherwise, is to be taken into account for determining the pecuniary jurisdiction of a particular consumer forum.

(iii) Whether "the value of the goods or services and compensation, if any, claimed" is to be taken as per original value of such goods, or service at the time of purchase of such goods, or hiring or availing of such service, or such value is to be taken at the time of filing the claim, in question.

(iv) In complaints, proposed to be filed under Section 12 (1) (c) of the Act with permission of Consumer Forum, whether the pecuniary jurisdiction is to be determined, taking the value of goods or service for individual consumer, or the aggregate value of the properties of all consumers getting together to file the consumer complaint is to be taken into consideration.

In view of the aforesaid discussions, our answers are as follows:-

(i) The Full Bench of this Commission in Ambrish Kumar Shukla & 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd., I (2017) CPJ 1 (NC) lays down the law correctly on the issue relating to pecuniary jurisdiction.

(ii) What should be the value of goods or services where the refund of paid money has been sought?

Answer:- Sale consideration, which was agreed between the parties for buying the goods or hiring or availing the services is relevant for determination of pecuniary jurisdiction in cases of refund also.

(iii) What should be the period for which the interest should be taken as compensation for adding to the value of goods or services for the purpose of availing the pecuniary jurisdiction of the consumer forum?

Answer:- For the purposes of determination of pecuniary jurisdiction, the rate of interest or period of interest as claim in the complaint alone has to be examined. However, the claim has to be proved in accordance with law and the relief is always subject to law of limitation and rule of estoppel and acquiescence. In view of power of condonation of delay as provided under Section 24-A (2) of the Act, the limit of two years for calculation of interest cannot be fixed either for the purposes of pecuniary jurisdiction or for granting the relief.

15. In both the decisions, it has been categorically held that “Purpose of pecuniary jurisdiction, the value of service hired or availed plus compensation shall be the value for the purpose of pecuniary jurisdiction.”
16. In the second decision, the Hon’ble Larger Bench has also referred judgement of Bench of five members of Hon’ble National Commission in Renu Singh Vs. Experion Developers Private Limited and other connected matters i.e. complaint No.1703/2018 decided on 26.10.2021.
17. In view of the above decision and facts admitted before us, on the date of filing the complaint, the District Forum had no pecuniary jurisdiction to entertain the complaint.  The question arise whether such complaint can be continued before this Commission in view of enactment of C.P.Act, 2019 which has come to force w.e.f. 20.07.2020.  The pecuniary jurisdiction of District Commission was enhanced upto Rs.1 crore, on the basis of consideration paid for goods or service availed under new C.P.Act, 2019.  We are of the opinion that 2019 C.P.Act has no retrospective effect and pending proceedings initiated under the provision of C.P.Act 1986 cannot be continued under C.P.Act, 2019.       
18. This reasoning of us is supported by the following decisions of the Hon’ble Supreme Court of India in case of 2021 (2) CPR 398 in the matter between Neena Aneja Vs. Jain Prakash Associates Ltd., dated 16^th March, 2021, their lordship have specifically observed in para 71 of the judgement which read thus:-

71. For the above reasons, we have come to the conclusion that proceedings instituted before the commencement of the Act of 2019 on 20 July 2020 would continue before the fora corresponding to those under the Act of 1986 (the National Commission, State Commissions and District Commissions) and not be transferred in terms of the pecuniary jurisdiction set for the fora established under the Act of 2019.  While allowing the appeals, we issue the following directions:

(i) The impugned judgement and order of the NCDRC dated 30 July 2020 and the review order dated 5 October 2020, directing a previously instituted consumer case under the Act of 1986 to be filled before the appropriate forum in terms of the pecuniary limits set under the Act of 2019, shall stand set aside;

(ii) As a consequence of (i) above, the national Commission shall continue hearing the consumer case instituted by the appellants;

(iii) All proceedings instituted before 20 July 2020 under the Act of 1986 shall continue to be heard by the fora corresponding to those designated under the Act of 1986 as explained above and not be transferred in terms of the new pecuniary limits established under the Act of 2019 and

iv) The respondent shall bear the costs of the appellant quantified at Rupees two lakhs which shall be payable within four weeks.

19. On the date of filing the complaint this District Forum on 26.10.2016 had no pecuniary jurisdiction to entertain the complaint and same complaint cannot be continued under the C.P.Act, 2019.  Therefore, complaint requires to be returned to the complainant for presentation before the Hon’ble State Commission, Bengaluru.
20. Point Nos.2 and 3:- It is settled proposition of law that when the authority has no pecuniary jurisdiction, it has no power to decide the case on merits.  In view of our finding on point No.1, these two points deal with merits of the case, do not survive for consideration.    
21. Point No.4:- In view of the discussion referred above on point Nos.1 to 3 and reasons stated above, this District Forum had no pecuniary jurisdiction to entertain the complaint and same complaint cannot be continued under C.P.Act, 2019.  The complaint requires to be returned to the complainant for presentation before the Hon’ble State Commission, Bengaluru.   Hence, we proceed to pass the following 

  O R D E R

1. The District Forum had no pecuniary jurisdiction to entertain the complaint on 26.10.2016 and this complaint cannot be continued under provision of new C.P.Act, 2019.
2. Return the complaint to the complainant for presentation before the Hon’ble State Commission, Bengaluru.
3. No costs.
4. Furnish the copy of this order to both parties as per law.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 8^th April, 2022)

Documents produced by the Complainant which are as follows:-

Documents produced by the OP No.1 which are as follows:-