Tamil Nadu

North Chennai

CC/57/2018

Mr.A.P.Srinivasan S/o.Mr.A.P.Nayagam - Complainant(s)

Versus

M/s.Kalaiiynam Rep by its Proprietor - Opp.Party(s)

M/s.AGD Bala Kumar

27 Aug 2022

ORDER

Complaint presented   :27.04.2018

                                                                    Date of disposal        : 27.08.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                PRESENT : THIRU. G. VINOBHA, M.A., B.L.,                          :PRESIDENT

                                      TMT. KAVITHA KANNAN, M.E.,                         : MEMBER-I

                              THIRU.V.RAMAMURTHY,B.A.,B.L.,PGDLA.,   :MEMBER-II

 

C.C. No. 57/2018

 

DATED THIS SATURDAY THE 27^thDAY OF AUGUST 2022

 

Mr. A.P. Srinivasan,

S/o. Mr. A.P. Nayagam (Late)

No. 9/5, Babu Jagajeevanram Nagar,

Thiruvottiyur,

Chennai-600 019.                                                                    .. Complainant.                                 

..Vs..

 

1. M/s. Kalanjiyam,

Rep by its Proprietor,

No.31, Devaraj Mudali Street,

Chennai-600 003.

 

2. Controller of Legal Metrology,

Rep. by Controller,

Dept. of Labour Welfare,

DMS Campus,

Teynampet.

Chennai-600 006.                                                          ..  Opposite parties.

 

Counsel for the complainant              : M/s. AGD Bala Kumar and 3 other

Counsel for the 1^stopposite party        : M/s. N.Manikandan and 2 other

Counsel for the 2^ndopposite party       : M/s. Ponram Raja.

 

ORDER

THIRU. V. RAMAMUTHY, B.A., B.L., PGDLA, MEMBER II :

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to refund a sum of Rs.3,015/-paid by the complainant towards purchase of the water heater together   with interest and to pay a sum of Rs.1,50,000/- towards compensation for mental agony, and to pay a sum of Rs.4,000/- towards notice cost and RTI letters and to pay a sum of Rs.20,000/- towards the cost to the complainant.

          1.THE COMPLAINT IN BRIEF:

The complainant had purchased a water heater ‘Havells Neo’ one litre 4.5 kw for Rs.3,015/- to replace the existing water at home from the 1^st opposite party.  On reaching home he had noticed that 1^st opposite party struck out the details of MRP in the carton box of the heater and the bill was only a cash invoice/estimate voucher.  The complainant contacted the 1^st opposite party on 22.09.2020 and raised the question of malpractice and informed him to take back the water heater and return the money alongwith regret letter for the mal practice done by him.  Since there was no proper reply from the 1^st opposite party, the complainant had sent a letter to Commissioner, Dept. of Commercial Taxes and the Commissioner, Dept. of Food and Consumer Protection on 26.09.2016 for taking action against 1^st opposite party.  The complainant submits that since no action was taken by Commissioner, Dept. of Commercial Taxes and the Commissioner, Dept. of Food and Consumer Protection he had sent a RTI petition on 24.11.2016 to the same authority.  The Public Information Officer of Food and Consumer Affairs responded vide letter dated 15.12.2016 to approach Legal Metrology Dept.  The complainant had lodged a complaint before the Legal Metrology Dept. on 26.09.2016 and the Head of Dept. directed the Labour Officer to take action against the 1^st Opposite party and accordingly enquiry was conducted and found the truth of mal practices by 1^st Opposite party.  The complainants submits that the Labour Officer had sent a letter on 13.02.2017 stating that enquiry was conducted, and action was taken by giving general advice to 1^st Opposite party not to do any mal practice and the complainant alleged that this action of Labour Officer is against law and the labour officer is collusive with 1^st opposite party.  The complainant submits that 1^st opposite party has neither replaced nor refunded the amount and complainant is willing to handover the unused water heater.  The acts of 1^st Opposite party amounts unfair and restrictive trade practice and opposite parties are liable for the deficiency of service by not providing adequate proper answer.  The complainant therefore issued a legal notice on 20.06.2017 to 1^st opposite party to initiate legal proceedings and calling upon the opposite party to issue an apology letter.  The complainant again sent a final notice on 03.04.2018 and it was delivered to opposite party but no reply was given.  The opposite parties are liable to refund the cost of water heater of Rs.3,015/- with 18% interest, notice cost and RTI letter Rs.4,000/-, Rs.1,50,000/- towards compensation for mental agony and Rs.20,000/- towards cost of petition.  Hence this complaint.

2.WRITTENVERSION FILED BY THE 1^st OPPOSITE PARTY IN BRIEF:

This 1^st Opposite party submits that the complainant has not come with clean hands and just to damage/defame firm with ulterior motives with personal gain.  The complaint was filed nearly a gap of one year and seven months.  The 1^st opposite party submits that the complainant had purchased water heater with connection and angle clock @ Rs.3884/- against cash invoice dated 17.09.2016.  Inadvertently there was an entry “estimate” which was unnoticed by 1^st opposite party but clearly mentioned as Buyer Cash Invoice.  The 1^st opposite party submits that the complainant alleged after a gap of 5 days with an intention to damage the reputation of firm.  The allegation of striking out the details of MRP in carton box of heater is without proof and biased and it is the responsibility of the complainant to prove his allegation.  The 1^st opposite party further submits that from the photocopy of carton box it clearly shows “Havells-at bottom of right – For consumer complaint contact….” but complainant neither approached the Havells India Ltd., Noida nor impleaded as one of the parties.  The 1^st opposite party submits that 1^st opposite party has the burden to prove allegation and failed to do so and there was no complaint against the product.  The opposite party submits that complainant did not contact immediately but only after a gap of 5 days over phone and in the absence of any proof for the struct down of the MRP rate, the complainant with an ulterior motive preferred the complaint to tarnish the image of the firm for personal gain and hence prayed for dismissal of complaint with exemplary cost.

3.WRITTENVERSION FILED BY THE 2^ndOPPOSITE PARTY IN BRIEF:

          The 2^nd opposite party denies all allegations and averments made by the complainant in the complaint except those that are specifically admitted herein put to the complainant very strict proof of the remaining thereof.  The 2^nd opposite party submits that all the material allegations in the complaint are false and frivolous and not maintainable in law and facts and without jurisdiction of this Hon’ble Forum.  The 2^nd opposite party is a misjoinder in this complaint since the service rendered by 2^nd opposite party does not come under the ambit and jurisdiction of consumer protection act since no consideration was paid by the complainant to this opposite party.  The 2^nd opposite party submits that he is discharging the duties of controller of Legal Metrology as provided in statute and had done all the duties without any default or deficiency.  The 2^nd opposite party submits the complaint against 1^stopposite party related to Commissioner, Dept. of Commercial Taxes and the Commissioner, Dept. of Food and Consumer Protection.  The Commissioner, Dept. of Food and Consumer Protection forwarded the complaint to O/o of Commissioner of Labour vide letter dated 30.11.2016 and the same was sent to Asst. Commissioner of Labour (Enforcement), 3^rd Circle, Chennai and accordingly Assistant Inspector of Labour inspected the establishment on 13.02.2017 and informed the complainant about the action taken.  During the inspection, contravention regarding smudged details of MRP in the carton box of Havells Water Heater 1 litre pack was found and the particular box was seized, and further action was initiated under Legal Metrology (Packaged Commodities) Rules 2011.  The 2^nd opposite party denies the allegation of complainant that Labour officer was collusive with the 1^st opposite party and in fact a show cause notice for contravention was issued to 1^st opposite party and a fine of Rs.2,500/- was collected as compounding fee vide Receipt No.124185 dated 06.7.2017.  The 2^nd opposite party submits that the complainant claimed compensation from this 2^nd opposite party also but the same complainant mentioned in the para 14(b) of the complaint that ‘mental agony suffered by the complainant due to the acts of the opposite party-1’.  Hence it is prayed that the complaint may please be dismissed against the 2^nd opposite party with exemplary costs.

4. POINTS FOR CONSIDERATION:

1. Whether there is unfair & restrictive trade practice and deficiency in service on the part of the 1^st opposite party.
2. Whether there is deficiency in service on the part of 2^nd opposite party.
3. Whether the complainant is entitled for the reliefs prayed in the complaint.     If, so to what extent?

 

The complainant filed proof affidavit and Ex.A1 to A14 were marked on his side and written arguments.  The 1^st opposite party filed written version, proof affidavit and written arguments.  No document was marked on his side. The 2nd opposite party filed written version, proof affidavit and written arguments.  Documents Ex.B1 to B4 are marked on his side.

5. POINT NO :1 

The complainant states that he hadpurchased a water heater ‘Havells Neo’ one litre 4.5 kw for Rs.3,015/- from the 1^st opposite party and on reaching home he found the MRP rates on the carton box was struck out and bill issued was only cash invoice/estimate.  The complainant states that he contacted the 1^st opposite party about this malpractice and asked to take back and return the money and also sought an apology letter.  Failure to receive favorable  response, the complainant wrote complaint to Commissioners of Commercial Taxes and Food & Consumer Protection for taking action against 1^st opposite party.  Since no action was taken by them he sent a RTI application to the same authority and Public Information Officer of Food & Consumer Affairs responded and advised to approach the Legal Metrology Dept.  The complainant lodged a complaint with Legal Metrology Dept.  and in turn they conducted the enquiry and found the truth with regard to mal practices and LabourOfficer sent a reply to complainant stating that action was taken by giving general advise but the complainant felt that LabourOfficer was collusive with 1^st opposite party.  The complainant states that 1^st opposite party neither replaced nor returned the money amounts to unfair and restrictive trade practice and opposite parities are liable for deficiency for service.  The complainant had sent a legal notice to 1^st opposite party and also a final notice for which no reply has been received by him.  The actions of 1^st opposite party caused severe mental agony and hardship to complainant.

          6. The 1^stopposite party in their written version as well as in their proof affidavit contented that the complainant has not come with clean hands and just to damage /defame firm with ulterior motive with personal gain.  The complainant had purchased water heater and angle cock for Rs.3 884/- but inadvertently there was an entry mark ‘estimate’ but clearly mentioned that Buyer Cash invoice. The 1^st opposite party states that the complaint was filed after 1 year 7 months and the allegation of struck out the details of MRP in carton box is without proof and biased.  The complainant ought to have approached the manufacturer as mentioned in the carton box or impleaded them as one of the parties.  The 1^st opposite party states that out of more than 1000 boxes from manufacturer no complaint was received till date.  The 1^st opposite party in their written version states  that the 1^st opposite party has the burden to prove the allegation and failed to do so but there was no complaint against the product.  Hence in the absence of any proof for the struck down the MRP rate the complaint may dismissed with exemplary cost.

7. The 2^nd opposite party denies all allegations and averments made by the complainant in the complaint except those that are specifically admitted.  The 2^ndopposite party is a misjoinder in this complaint since the service rendered by 2^nd opposite party does not come under the ambit and jurisdiction of consumer protection act since no consideration was paid by the complainant to this opposite party.  The 2^nd opposite party submits that he is discharging the duties of controller of Legal Metrology as provided in statute and had done all the duties without any default or deficiency.  The 2^nd opposite party states that the complaint against 1^st opposite party was related to Commissioner, Dept. of Commercial Taxes and the Commissioner, Dept. of Food and Consumer Protection.  The Commissioner, Dept. of Food and Consumer Protection forwarded the complaint to O/o of Commissioner of Labour vide letter dated 30.11.2016 and the same was sent to Asst. Commissioner of Labour (Enforcement), 3^rd Circle, Chennai and accordingly Assistant Inspector of Labour inspected the establishment on 13.02.2017 and informed the complainant about the action taken.  During the inspection, contravention regarding smudged details of MRP in the carton box of Havells Water Heater 1 litre pack was found and the particular box was seized, and further action was initiated under Legal Metrology (Packaged Commodities) Rules 2011.  The 2^nd opposite party denies the allegation of complainant that LabourOfficer was collusive with the 1^st opposite party and in fact a show cause notice for contravention was issued to 1^st opposite party and a fine of Rs.2,500/- was collected as compounding fee vide Receipt No.124185 dated 06.7.2017.  The 2^nd opposite party states that the complainant claims compensation from this 2^nd opposite party also but the same complainant mentioned in the para 14(b) of the complaint that ‘mental agony suffered by the complainant due to the acts of the opposite party-1’. 

8. There is no dispute regarding purchase of Havells Neo Water Heater from the 1^st opposite party.  The 1^st opposite party in their written version agreed to the contention of the complainant that the invoice was issued with Cash Invoice/Estimate voucher.  The complainant in his complaint mentioned that the MRP rates on the caton box was struck out by 1^st opposite party thus indulging in malpractice.   But the 1^st opposite party in their version contended that the allegation was without proof and biased, and the complainant has to approach the manufacturer or impleaded him as one of the parties.  It is observed from the Ex.A2, the MRP rates are struck out by pen and no rate is visible.  The 1^st opposite party in their written version clearly admits that “1^st opposite party has the burden to prove allegation and failed to do so.  There was no complaint against the product”.   As agreed by 1^st opposite party there was no manufacturing defect and hence the question of impleading the manufacturer does not arise.  As contended by the complainant and 2^nd opposite party, the Labour Officer of Legal Metrology Department conducted the enquiry at the 1^st opposite party premises and found the contravention, issued a show cause notice and fined a sum of Rs.2,500/- as compounding fee.  It is seen from Ex.B2 that 2^nd opposite party issued a show cause notice to 1^st opposite party with respect to “non declaration of MRP on packed goods”and Ex.B3 is the clear evidence of compounding fee paid by 1^st opposite party.  In the Ex. B4 filed by 2^nd opposite party wherein the 1^st opposite party clearly admits the mistake committed by him and also an undertaking was given by the 1^st opposite party as given below :

ஐயா,தங்களது40/17எண்ணிட்டஇணக்கக்கட்டண அறிவிப்பினை பெற்றுகொண்டேன். மேற்படி இணக்கக்கட்டண அறிவிப்பில் கூறப்பட்ட குறைகளை நான் முழுமனதுடன் ஒப்புக்கொள்கிறேன். அதற்கான இணக்கக்கட்டணத் தொகையினை அரசுக்கு செலுத்துவதற்கு ஒப்புக்கொள்கிறேன். இது குறித்தஎனது உறுதிமொழியினை  கீழ்கண்டவாறுதெரிவித்துக்கொள்கிறேன்.

உறுதிமொழி

காம்பௌண்டிங் அதிகாரி முன் நேர்முக விசாரணையினை நான் விரும்பவில்லை என்றும் காம்பௌண்டிங்  அதிகாரியால் வழங்கப்படும் உத்தரவிற்கு முழுமனதுடன் கட்டுபடுக்குறேன் என்றும் காம்பௌண்டிங் அதிகாரியால் விதிக்கப்பெறும் கட்டணத் தொகையினை குறித்த காலக்கெடுவிற்குள் செலுத்திவிடுகிறேன் என்றும் உறுதிகூறுகிறேன்.  

Hence the contention of 1^st opposite party that the complaint was without proof and biased is not established.  From the above observations it is found that 1^st opposite party had indulged in unfair and restrictive trade practices.  The 1^st opposite  party also not responded to the legal notices sent by complainant.  It is found from Ex.A1 it is mentioned as cash invoice and also estimate and the 1^st opposite party has failed to strike out the word estimate portion in Ex.A1 which again amount to deficiency in service on the part of the 1^st opposite party and in not clearly mentioning that it is a cash invoice bill. The above acts of 1^st opposite party amount to deficiency in service.  This point is answered accordingly.

9. POINT NO :2 

The 2^nd Opposite party contended in their written version that there is  misjoinder of party in this complaint since the service rendered by 2^nd opposite party does not come under the ambit and jurisdiction of consumer protection act and no consideration was paid by the complainant to this opposite party.  On the other hand, from Ex. A6 the Commissioner of Labour based on the letter received from State Consumer Protection Council, Dept. of Food and Consumer Protection, Government of Tamilnadu directed the 2^nd opposite party to investigate and report the same with a copy to complainant.  Hence the contention of 2^nd opposite party that they were not necessary party to this complaint is not maintainable. 

10. The complainant alleged that 2^nd opposite party colluded with 1^st opposite party and failed to take action against 1^st opposite party as per law and only general advice was given to 1^st opposite party.  It is observed from the documents Ex.A3 to Ex.A10 that complainant had sent letters to Commissioners of Commercial Taxes and Food & Consumer Protection vide Ex. A3 and a reply was received from Commissioner of Commercial Tax vide Ex. A4.  In the absence of any action from Commissioner of Food & Consumer Protection, RTI application was sent by complainant for which a reply was received from Dept. of Food and Consumer Protection vide Ex. A5.  A memo by Assistant Commissioner of Labour was sent to Inspector of Labour vide Ex.A6 and a reminder memo was also sent on 20.02.2017 vide Ex. A9.  The Assistant Commissioner of Labour also sent a reply to complainant vide Ex.A7 and Public Information Officer of Food and Consumer Protection sent a reply to complainant RTI application vide Ex.A8.  From the above, it is observed that concerned authorities including 2^nd opposite party had promptly acted and taken further action at appropriate levels.  It is evident from the Ex. B2 that 2^nd opposite party had sent a show cause notice to 1^st opposite party regarding non-availability of MRP rates on packed goods, seized sample goods and also fined a sum of Rs.2,500/- as compounding fee as seen from Ex. B3.  It is noted from the Ex.B4, that 2^nd opposite had obtained a letter accepting the mistakes by 1^st opposite party and also an undertaking from 1^st opposite party agreeing to the orders of competent authority.  In view of the above observations, the contention of complainant that 2^nd opposite party colluded with 1^st opposite party is not maintainable. For the reasons as discussed above there is no deficiency in service by 2^nd opposite party and the complainant is not entitled for compensation from 2^ndopposite party.  This point No.2is answered accordingly.

11. POINT NO :3

Since, the complainant has not alleged any defect in the water heater and only complained about the striking out of the MRP details in the carton box and since a sum of Rs.2,500/- was already collected as fine from the 1^st opposite party in Ex.B3, the complainant is not entitled for refund of the cost of water heater of Rs.3015/- with interest but only compensation for mental agony alone.        

In the result, this complaint is allowed in part. The 1^st opposite party ordered to pay a sum of Rs.25,000/-(Twenty Five thousand only) towards compensation for mental agony besides a sum of Rs.5,000/-(Five thousand only) towards cost of this proceedings to the complainant.      

          The above amount shall be paid to the complainant within 2 months from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest from the date of this order to till the date of payment.

This complaint against 2^nd opposite party is dismissed.      

 

Dictated  by the Member II to the Assistant taken down, transcribed and computerized by her, corrected by the President and pronounced by usin the open Forum on this the 27^th day of August 2022.

 

MEMBER – I                         MEMBER II                          PRESIDENT

LIST OF DOCUMENTS MARKED ON THE SIDE OF COMPLAINANT:

Ex.A1	17.09.2016	Cash invoice/estimate bill received from opposite party 1
Ex.A2		Photo copy of the carton box
Ex.A3	26.09.2016	Complainant letter to Commissioner of commercial tax & dept of Food and consumer Protection
Ex.A4	21.10.2016	Reply letter from commercial tax dept.
Ex.A5	15.12.2016	Reply letter from dept of food and consumer protection.
Ex.A6	22.12.2016	Memo issued by labour Commissioner, chennai against the opposite party 1.
Ex.A7	13.02.2017	Reply letter from the Assistant Inspector of Labour  to the complainant.
Ex.A8	15.02.2017	RTI letter reply from the Commissioner of Labour to the complainant.
Ex.A9	20.02.2017	Memo issued to Inspector of labour  and report to the complainant.
Ex.A10	06.03.2017	Letter to Inspector of Labour by the complainant.
Ex.A11	20.06.2017	Notices to the opposite party 1 by the complainant.
Ex.A12	15.07.2017	Letter to opposite party 2 by the complainant.
Ex.A13	03.04.2018	Final notice to the opposite party  by the complainant.
Ex.A14	04.04.2018	Acknowledgement card.

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF 2^nd OPPOSITE PARTY:

 

Ex.B1	06.03.2017	Letter to the 1st opposite party received by the complainant.
Ex.B2	14.02.2017	Show cause notice to the 1st opposite party.
Ex.B3	06.07.2017	The receipt for fine amount to the 1st opposite party.
Ex.B4	06.07.2017	The declaration memo by the 1st opposite party.

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF 1^st OPPOSITE PARTY:

 

                                      ……NIL ……

 

 

MEMBER – I                         MEMBER II                          PRESIDENT