BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.336 of 2019
Date of Instt. 22.08.2019
Date of Decision:15.04.2024
Nagma Gupta aged 45 years wife of Prince Tayal R/o EG 926-A Mohalla Gobind Garh, Jalandhar City.
..........Complainant
Versus
1. M/s Sharma General Store, EG 924, Mohalla Gobind Garh, Jalandhar City, through Mr. Billa its prop/partner/authorized Personnel.
2. Pepsico India Holdings Pvt. Ltd., Level 3-6, Pioneer Square, Sector 62, Near Gold Course Extension Road, Gurugram 122001 Haryana. Through its Directors/Managing Director.
3. M/s CM Associates (P) Ltd-SDP, Village Jagan, Nakodar Road, Opposite TV Tower, Jalandhar City 144001. Through its Directors/Managing Director..
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Prince Tayal, Adv. Counsel for the Complainant.
None for OPs.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the OP No.1 is running his business of General retail shop for selling petty goods, biscuits, packaged food items, cold drinks, juices, soaps etc. and is engaged in the said business under the name and style of M/s Sharma General Store at above mentioned address as its proprietor. The OP No.2 is the manufacturer/Marketers of Potato Chips under the brand name of Uncle Chips and OP No.3 is the sole distributor for OP No.2. The complainant purchased one full roll/strip of Uncle Chips (1 roll contains 10 Packets of packaged chips) of MRP Rs.5/- bearing Net Quantity of 12g +2.4 g extra bearing Batch No.MD250519 with its Manufacturing dated 25/5/2019 being manufactured and marketed by the OP No.2 and distributed for sale by OP No.3 and sold to the complainant by OP No.1 somewhere on 5th of July 2019. The complainant started using the said strip when she came across some of the packets she found that those were not containing any Chips in it and only air was filled in the said packets. To the astonishment of the complainant there were some other packets also which contained only small quantity of chips and with no stretch of imagination could it contain the net weight of 14.4 grams as declared by OPs on the said packet. The complainant has retained the sealed empty packets of Uncle Chips with her as evidence and the same is being produced before this Forum for its inspection. On noticing the said shortcoming and the fraudulent activities being carried out by the OPs, the complainant immediately contacted OP No.1, but OP did not respond well and asked the complainant that she should contact the company in this regard. The complainant asked OP No.1 to change the said packets of Uncle chips with new packets containing the full weight of chips in it, but OP flatly refused to do so. The OPs are engaged in unfair and illegal trade practices and OPs are willfully and intentionally manufacturing, marketing and selling underweight packets of Chips with the sole motive to earn illegal money at the hands of the general public at large. Further when chips of one of the packet were weighed after opening the said packet, then it did not contain 14.4 grams of chips and only contained 13 grams of chips. So OPs in order to boost sales are displaying on the packet of Uncle Chips that the said packet contains 20% extra chips just to attract the customers to buy your chips whereas opposite parties are playing fraud with the innocent people like the complainant and are gaining crores of illegal rupees by selling underweight or empty packets of chips. The complainant then got issued one legal notice dated 8/7/2019 to the OPs, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to replace the faulty/underweight chips packets of the complaint with new defect free and containing chips weighing 14.4 grms. Further, OPs be directed to replace all the said faulty/underweight chips packets circulated by them for sale in the whole of market of India and to refrain the OPs to indulge in the same unfair and illegal trade practice in future. Further, OPs be directed to pay a compensation of Rs.4,00,000/- for causing mental tension and harassment to the complainant and also be directed to pay a litigation expenses.
2. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable against the answering OP in the present form hence deserves dismissal. It is further averred that the complainant has not come to this Forum with clean hands and has suppressed the material and important facts from this Forum as such does not deserve any relief from this Forum. It is further averred that the present complaint of the complainant qua the answering OP No.1 is wrong, false and frivolous to the very knowledge of the complainant as such is not sustainable in the eyes of law. It is further averred that no cause of action ever arose to the complainant to file the present complaint against the answering OP No.1 as such, the present complaint deserves dismissal. On merits, it is admitted that the OP No.1 is the petty shopkeeper who runs the said business to earn his livelihood. It is also admitted that the OP No.1 sells almost all the brands including chips of uncle chips brand which are being manufactured by OP No.2 and he buys vide bills from OP No.3. It is also admitted that the complainant purchased chips roll containing 10 packets of chips of MRP 5/- per packet. It is also admitted that the complainant came to OP No.1 with the remaining chips packets and the OP No.1 also notice that some of the packets in that strip were totally empty. The factum with regard to sending a legal notice by the complainant to the OP is also admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. The OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that the complaint is wholly false, frivolous and vexatious having been filed mischievously to compel the answering OPs to succumb to the illegal and unlawful demands and claims of the complainant. It is further averred that the complaint deserves to be dismissed on the ground that, there is no date of purchase is mentioned in the entire complaint, which creates a strong doubt about the genuineness of the complaint. It is further averred that the complaint deserves to be dismissed on the ground that, there is no proof of purchase is placed on record of the present complaint, which proves the fact that the packet in question was not obtained by the complainant as per the definition of the consumer as mentioned in the Consumer Protection Act. It is further averred that the complainant is not a consumer within the meaning of Section 2(1)(d)(i) of the Consumer Protection Act 1986. It is further averred that in the present complaint there is neither any allegation nor any material on record to prove that the complainant purchased any goods for any consideration from the answering OP. It is further submitted that no valid proof of the alleged purchase has been submitted by the complainant and unless and until it is conclusively proved that the impugned packet was manufactured by the answering OP, no liability in law or on facts can be made attributable towards answering OP. Therefore, the complaint of the complainant deserves to be dismissed with heavy costs as the complainant cannot be termed as a consumer within the provisions of the Consumer Protection Act, 1986 as amended up to date. It is further averred that the complaint deserves to be dismissed on the ground that, the supporting annexures to the complaint has not been supplied by the complainant, which is as such violations of the provisions of the CPC, hence as such the present compliant is liable to fail and the complainant be asked to supply the copy of the complete complaint with the supporting documents and annexures to the answering OP No.2, so as to enable them to file and raise appropriate defense to the same. It is further averred that the present complaint deserves to be dismissed on the ground of mis-joinder and non-joinder of parties. In the present complaint the complainant is not able to establish on record of the case file that the product in question belongs to the answering OP, as he could not been able to link the product in question to the present answering OP. On merits, all the allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. The OP No.3 failed to appear nor has filed written statement nor paid cost and ultimately, the OP No.3 was proceeded against exparte, but thereafter the OP No.3 appeared through its counsel and filed an application for joining the proceedings, which was allowed subject to condition that the OP No.3 will have only right to argue the case and will have no right to file written statement.
5. Rejoinder not filed by the complainant.
6. In order to prove their respective versions, both the parties produced on the file their respective evidence.
7. We have heard the learned counsel for the complainant only as none has appeared on behalf of the OPs and have also gone through the case file very minutely.
8. It has been proved on record that the complainant purchased one full roll/strip of Uncle Chips (1 roll contains 10 packets of packaged chips) of Rs.5/- each from OP No.1 on 05.07.2019. The grudge of the complainant is that some of the packets of the strip were not containing any chips and only air was filled in the said packets and some other packets, contained only small quantity of chips. The complainant asked the OP No.1 to change the said packets with new packets containing the full weights of chips as per weight 14.4 gms mentioned on the packet, but the OP refused to do so. The complainant has proved the sealed packets of Uncle Chips in her evidence as Ex.C9. This is allegedly unfair trade practice on the part of the OP.
9. The OP No.1 has admitted that the complainant has purchased the chips roll and also admitted that some of the packets in that strip were totally empty as it could be felt easily by just moving the same up and down. Further, the OP No.1 contended that the OP No.1 had purchased the said strip of chips from OP No.3, which is evident from Ex.C-8. Original sealed packets deposited with Commission show that some of the packets of the strip not containing any chips and only air was filled in the said packets and some other packets, contained only small quantity of chips and this fact has been admitted by the OP No.1 in the written statement.
10. The OP No.2 contended and in his written statement has alleged that no packet was purchased from him for consideration, therefore, there is no liability of OP No.2, but his contention is not tenable. The OP No.2 has alleged that no goods were purchased from them by the OP No.1, but the OP No.2 has not produced on record any document to show that the batch number of the product and other material facts mentioned on the product i.e. Uncle Chips does not belong to OP No.2 nor this fact has been proved by the OPs that the Chips Packet manufactured by them are fully packed as per the weight mentioned on the Chips Packet. In these circumstances, it is proved that the OP No.2 is a manufacturer as this fact has been alleged by the OP No.1 also, who, is running his business of general retail shop for selling patty goods. The OP No.3 is the distributor who has allegedly purchased the uncle chips from OP No.2 for further distribution. The OP No.2 has not produced any document to show that these chips packets were never purchased from the OP No.2 and OP No.3 is not their distributor. Thus, it is proved that OP No.2 is manufacturer and OP No.3 is distributor. It is their responsibility to provide the customers the product and articles as per specification on the packet, if they don’t comply, this is clear cut deficiency in service. The manufacturer and distributor have not supplied the chips as per specification and particulars mentioned on the packet, therefore, this is unfair trade practice on the part of the OPs No.2 and 3. The OP No.2/manufacturer packed the chips into the packets and some packets were without containing chips or less chips and some were filled with air. If the distributor i.e. OP No.3 had found that the packets are empty, it was his duty to return back the packets in original to the manufacturer and not to supply the same to the retailer. Similarly, the OP should not have given empty packets to the complainant. So, there is clear cut deficiency in service and unfair trade practice on the part of the OP No.2/Manufacturer and OP No.3/Distributor. Thus, the complainant is entitled for the relief as claimed.
11. In the light of above detailed discussion, the complaint of the complainant is partly allowed. The OP No.1 is directed to replace the underweight and empty chips packet with new defect free and containing chips weighing 14.4 gms to the complainant with compensation of Rs.1000/- for harassment. Since, both OPs No.2 and 3 being manufacturer and distributor are negligent and responsible and accountable towards the entire society, therefore, they are jointly and severally liable to pay a compensation of Rs.15,000/- for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
15.04.2024 Member Member President
