| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.23 of 15-01-2015 Decided on 26-02-2016 Kulwant Singh S/o Kikkar Singh R/o # 829 Model Town Phase III, Bathinda, Tehsil and District Bathinda. ........Complainant Versus 1.Pepsico India Holdings Pvt. Limited, Frito Lay Division P.O. Box-27, DLF, Qutab Enclave-Phase I, Gurgaon, District Gurgaon, through its Managing Director/Competent Person. 2.Pepsico India Holdings Pvt. Limited, Frito Lay Division, 3-B, DLF Corporate Park S Block, Qutab Enclave-Phase-III, Gurgaon, District Gurgaon, through its Managing Director/Competent Person. 3.Singla Provision Store, Gali No.25, Ajit Road, Bathinda, through its Partner/Proprietor. 4.M/s Sai Kirpa Agency, Multania Road, Street No.3-A, Guru Nanak Nagar, Bathinda, Tehsil and District Bathinda, through its Partner/Proprietor. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Smt.Sukhwinder Kaur, Member. Sh.Jarnail Singh, Member. Present:- For complainant: Sh.Gurwinder Singh, Advocate. For opposite party Nos.1 and 2: Sh.Harraj Singh, Advocate. For opposite party No.3: Sh.Kamaljeet Singh, Advocate. Opposite party No.4: Already ex-parte. ORDER M. P. Singh Pahwa, President The complainant Kulwant Singh (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Pepsico India Holdings Pvt. Limited and Others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he has been in routine using the products of opposite parties including Lehar Karare Peanuts. In order to meet the requirement of his family, he has purchased some domestic items including Lehar Karare Peanuts worth Rs.10/- vide bill No.178 dated 8.11.2014 from Singla Provision Store, Bathinda. It is alleged that on pack, the weight of the product is mentioned as 40 gm. The complainant took the said pack to his house and when weighed, he noticed that the actual weight of the said pack is 10 gm. instead of 40 gm. As such, opposite parties are cheating the general public at large and are selling the products other than what is mentioned on the said pack and are charging more amount for the item sold which is of less weight. It is further alleged that the complainant contacted opposite party No.3, but it told him that the products are being sold as received from its manufacturer. The product i.e. Lehar Karare Peanuts were prepared by opposite party Nos.1 and 2 and opposite party No.3 is the retail seller and opposite party No.4 is the distributor/stockist of the said product. As such, all opposite parties are liable for sale of the abovesaid product and there is deficiency in service on their part. On this backdrop of facts, the complainant has alleged unfair trade practice on the part of opposite parties and has claimed Rs.5 lacs as damages. Hence, this complaint. Upon notice, none appeared on behalf of opposite party No.4. Hence, ex-parte proceedings were taken against it. Opposite party Nos.1 to 3 appeared through their counsel and contested the complaint by filing their separate written version. In the joint written version of opposite party Nos.1 and 2 before raising preliminary objections and reply on merits, they have pleaded that the complainant is not entitled for any relief, claim and compensation and preliminary objections are being raised by them without prejudice to their rights and their contentions to raise these contentions also by way of separate and appropriate applications. Thereafter opposite party Nos.1 and 2 have raised preliminary objections that the complaint is false, frivolous and vexatious having been filed mischievously to compel them to succumb to illegal demand and claims of the complainant. He has indulged in malicious, speculative litigation aimed at harassing, intimidating and blackmailing opposite party Nos.1 and 2 and deriving undue and unwarranted profits and gains by holding out threats to their reputation and goodwill in the market. The complaint deserves to be dismissed on the ground that the supporting annexures/documents to the complaint have not been supplied by the complainant, which is violation of the provisions of 'Act'. The complainant is not consumer within the meaning of Section 2(1)(d)(i) of 'Act'. There is neither any allegation to point out that the complainant purchased goods for consideration from opposite party No.1. He has not shown anything on record about the purchase of the pack of Lehar Karare Peanuts within the territorial jurisdiction of this Forum. This Forum has no territorial jurisdiction to entertain this complaint. The complainant has to stand on his own legs. He must be put to strict proof that he has purchased the packet of Lehar Karare Peanuts from the retailer and retailer had purchased the product in question from the authorized distributor of opposite party Nos.1 and 2. Without establishing this fact, it cannot be presumed or alleged that the packet of Peanuts in question in any way belongs to opposite party Nos.1 and 2. It is pleaded that opposite party Nos.1 and 2 maintain the highest levels of quality, safety and hygiene at all their plants and comply with all international standards prescribed for the food processing industry and norms as specified by the government and under the various statutes applicable on them. The complainant has claimed damages of Rs.5 lacs but he has failed to prove on record that whether any loss or injury has actually been suffered by him. In the absence of proof of actual loss or injury, the complaint deserves to be dismissed. The contents of the complaint raise disputed questions of facts, which require extensive evidence. Therefore, this complaint is not maintainable. Matter is to be decided by Civil Court. There is no deficiency in service or neglignce on the part of opposite party Nos.1 and 2. The complainant has not mentioned any date of manufacture and batch number, which establish the fact that the packet in question was procured from the open grey market to fulfill the ill motives and his unlawful desires. This complaint deserves to be dismissed as the packet in question is still in the possession of the complainant. On merits, opposite party Nos.1 and 2 have controverted all the material averments and reiterated their stand as taken in preliminary objections and detailed above. In the end, they have prayed for dismissal of complaint. In its separate written version, opposite party No.3 has not controverted all the material averments of the complainant, rather it has taken the stand that it has been selling the product as received from opposite party Nos.1, 2 and 4 and there is no fault on its part as it is only retail seller. In the end, opposite party No.3 has pleaded that complaint be disposed off accordingly. Both the parties were afforded opportunities to produce evidence. In support of his claim, the complainant has tendered into evidence affidavit of Kulwant Singh Dhaliwal dated 21.7.2015, (Ex.C1); photocopy of cash/credit memo, (Ex.C2); photocopy of Lehar Packet, (Ex.C3); photocopy of backside of Ex.C3, (Ex.C4); postal receipts, (Ex.C5 to Ex.C7); photocopy of legal notice, (Ex.C8) and Lehar Packet in question, (Ex.C9). In order to rebut this evidence, opposite party Nos.1 and 2 have tendered into evidence affidavit of Nidhir Sudan dated 21.9.2015, (Ex.OP1/1) and closed the evidence. Opposite party No.3 failed to produce evidence. As such, its evidence was closed by order. We have heard learned counsel for the parties and gone through the record. Learned counsel for complainant has submitted that the complainant purchased the product in question i.e. Lehar Karare Peanuts from opposite party No.3 vide bill, (Ex.C2). Opposite party No.3 has not disputed this fact. Therefore, complainant is proved as a 'consumer' as Lehar Karare Peanuts manufactured by opposite party Nos.1 and 2 and sold by opposite party No.3. Opposite party No.3 has also in its written version not disputed this fact. The seal packet was also produced before this Forum as Ex.C9. This Forum can also take notice of the fact that this packet is not tempered with. Weight of the contents is mentioned as 40 gm., but in actual weight of the contents is not more than 10 gm. Therefore, unfair trade practice on the part of opposite parties stands proved. Opposite parties are cheating with general public by selling under weight packets. Therefore, they should be imposed exemplary penalty and complainant be awarded exemplary compensation irrespect of fact that he has not produced any evidence to prove any financial loss. On the other hand, learned counsel for opposite party Nos.1 and 2 has submitted that the complaint is result of connivance of the complainant with opposite party No.3 and he has filed this complaint only to harass, humiliate and defame opposite party Nos.1 and 2 with ulterior motive. Of-course, the complainant has alleged that he has purchased the product in question from opposite party No.3 and opposite party No.3 has not disputed this fact, but the complainant was also to prove that the product was manufactured by opposite party Nos.1 and 2 and opposite party No.3 purchased the product from any authorized distributor of opposite party Nos.1 and 2 or from opposite party Nos.1 and 2. The complainant has failed to prove this fact. The complainant has produced on record bill, (Ex.C2) to prove that he has purchased the product from opposite party No.3. One bill dated 28.11.2014 is brought on record by the complainant to prove that opposite party No.3 purchased the product from opposite party No.4, who is authorized dealer of opposite party Nos.1 and 2. This bill is dated 28.11.2014 whereas the complainant has purchased the product from opposite party No.3 on 8.11.2014. Moreover bill dated 28.11.2014 has not been issued in favour of opposite party No.3. Therefore, by the bill dated 28.11.2014 issued by opposite party No.4, it cannot be held proved that opposite party No.3 purchased the product from authorized dealer of opposite party Nos.1 and 2. This fact also shows that opposite party Nos.1 and 2 have been unnecessarily dragged into litigation. Learned counsel for opposite party No.3 has submitted that opposite party No.3 is not a manufacturer of product. It has purchased the product in sealed condition and sold the same in same condition. There was no unfair trade practice on the part of opposite party No.3. We have given careful consideration to these rival submissions. The complainant has to prove his case by affirmative evidence. As per complainant, he has purchased Lehar Karare Peanuts from opposite party No.3, manufactured by opposite party Nos.1 and 2 vide bill dated 8.11.2014. It is not the case of the complainant that opposite party No.3 is an authorized dealer of opposite party Nos.1 and 2. Opposite party No.3 has admitted in its written version that it has been selling the products as received from opposite party Nos.1, 2 and 4. Opposite party No.3 has not produced any bill or invoice issued by opposite party Nos.1 and 2 to prove that it has purchased the product directly from opposite party Nos.1 and 2. Opposite party No.3 has also not produced any bill to prove that the product in question has been purchased from opposite party No.4. Of-course, one bill has been brought on record by the complainant, which is issued by opposite party No.4, but it is of dated 28.11.2014. The product was purchased by the complainant from opposite party No.3 on 8.11.2014. Moreover bill dated 28.11.2014 issued by opposite party No.4 is not in favour of opposite party No.3. Therefore, opposite party No.3 failed to prove that he has purchased the product in question from any authorized dealer or manufacturer i.e. opposite party Nos.1, 2 and 4. In such circumstances, no unfair trade practice on the part of opposite party Nos.1, 2 and 4 is proved by the complainant. Admittedly, opposite party No.3 has sold the product to the complainant. Product is under weight. Therefore, opposite party No.3 cannot escape from its liability. For the reasons recorded above, the complaint is partly accepted with Rs.2000/- as cost and compensation against opposite party No.3 and dismissed qua opposite party Nos.1, 2 and 4. The product in question be destroyed after expiry the period of filing of appeal/revision and subject to result of appeal/revision, if any. The compliance of this order be made within 30 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- 26-02-2016 (M.P Singh Pahwa) President (Sukhwinder Kaur) Member (Jarnail Singh) Member
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