Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order :  22.01.2016

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite parties to refund the full price of the said packets paid at the time of purchase along with interest @ 18% per annum from 03.11.2011 till full and final payment of such amount to the complainant.
2. To pay Rs. 1,50,000/- ( Rs. One Lac Fifty Thousand only ) as compensation.
3. To pay Rs. 10,000/- ( Rs. Ten Thousand only ) as litigation costs.

2. Brief facts of the case which led to the filing of complaint are as follows:-

1. The complainant purchased one packet of Lays Classic Salted Potato chips and one packet of Lays Spanish Tomato Tango Potato Chips from Manoj Pan Bhandar, Jehanabad Station Road, Jehanabad on 03.11.2011 for her personal use. ( Annexure – 2 and 3 )
2. The said Potato Chips are manufactured by the opposite party no. 1.
3. The complainant opened the packet of Lays New Classic salted Chips in the presence of her family members. She had found that only few slices were inside the packet.
4. The contents of chips in the packet do not represent what it should have been. She immediately lodged the complaint with Manoj Kumar in the presence of her family members and another person and requested to replace the said chips packet with another packet of same description but he totally ignored the request made by her and directed her to lodge the complaint with the manufacturing company because the manufacturing company is only answerable for it.
5. The packet of Lays Spanish Tomato Tango Potato Chips had not been opened but the weight of the contents of the chips in the said packet is less than the net weight as mentioned on the said packet.
6. The complainant sent the letter to the opposite party no. 2 and Manoj Kumar in which after stating entire facts, requested to pay the adequate compensation to the complainant for loss, inconvenience and mental tension suffered due to unfair trade practice on the part of the manufacturer and seller and the same is still pending before them. ( Annexure – 4 )
7. The grievance of the complainant is fair just and reasonable.
8. The cause of action arose within the jurisdiction of this Forum and this forum has territorial and pecuniary jurisdiction to try the present complaint.
9. The present complaint is being filed within the period prescribed under Section 24 A of the Act.

3. The Opposite Party no. 1 and 2 in their written statement has submitted as follows :-

1. The complainant is not a consumer within the meaning of section 2(1)(d)(i) of the Consumer Protection Act 1986. The Act defines Consumer as “ consumer to be a person who buys any goods for consideration which has been paid and promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose”.

The answering opposite party maintains the very highest levels of quality safety and hygiene at all its plants and complies with all international standards prescribed for the food processing industry. The answering opposite party is making this submission keeping in view that the packaging machine used by it are improved machine with in – built accurate weighing load cells. The accuracy of in – built weighing load cell is up to 0.5 g with auto control on weighing process. All weighing machines are also regularly stamped by weights and measures department for its accuracy. Apart from the above the answering opposite party has strong on line quality control checks consisting of manual weight checks every half an hour for every machine. Electronic balances having readability 0.01 g with accuracy level of 1 g with auto – calibration facility in the same. The present complaint is liable to be dismissed on this ground alone.

2. The complainant has claimed compensation allegedly on account of inconvenience, loss, harassment and mental tension also for punitive damage to the complainant. As per section 14(1)(d) of the Consumer protection Act 1986, the compensation may be awarded to the consumer for any loss or injury suffered due to the negligence of the opposite party. In the present case the complainant has failed to prove on record that whether any loss or injury has actually been suffered by him and in the absence of the proof of actual loss or injury due to the negligence of the opposite party (s) the complaint deserves to be dismissed.

The Hon’ble State Commission of Chandigarh in, “Rajinder Singh Rangpuri Vrs. Amritsar Beverages Pvt. Ltd., & Another”,111 (2002) CPJ 156 has dismissed the appeal of the appellant on the ground that no basis was found on which the complainant has claimed such a huge compensation.

3. The contents of the alleged complaint raises disputed questions of fact which requires extensive evidence and therefore is not maintainable and this forum is not competent to entertain this complaint and the matter is to decided by a Civil Court without prejudice to the contention that the complaint is false and baseless and is liable to be dismissed.
4. The present complaint is bad for the misjoinder and rejoinder of the necessary party as the complainant miserably and deliberately failed and avoided to make the actual retailer party in the present complaint, hence the present complaint is liable to be dismissed with the costs as this Forum deems fit.

4. The Complainant in her Rejoinder to the written statement filed on behalf of opposite party no. 1 and 2 are as follows :-

1. It is respectfully submitted that the deponent has not annexed authorization letter along with this written statement to establish that he is duly authorized to swear the affidavit on behalf of the opposite party no. 1 and 2. It is necessary to produce authorization letter. In absence of authorization letter, it cannot be presumed that the person who put his signature at page no. 6 of the written statement is duly authorized to swear the affidavit on behalf of the opposite party no. 1 and 2. The statement made in the complaint is very clear and which established that the opposite party no. 1 and 2 has committed unfair trade practice which is defined under section 2 (1) (r) of the consumer protection act. The present complaint is not bad for miss – joinder and non joinder of the necessary party in the complaint and the complainant. The complainant is entitled to get compensation for un trade practice on the part of the opposite party no. 1 and 2. They supplied underweight packet in the market and by the advertisement they induced general public including the complainant to purchase the said packet. In the packet of lays Spanish Tomato Potato Chips the weight has been mentioned but after weighing it is found that the weight of the contents of the chips in the said pocket is less than the net weight as mentioned on the said pocket.
2. It is respectfully submitted that the complainant purchased one packet of lays New Classic salted Potato chips and one packet of lays Spanish Tomatoa tango Potato Chips from Manoj Pan Bhandar, Jehanabad Station Road, Jehanabad on 03.11.2011 for her personal use. Thus she is consumer under section 2 (1) (d) of the consumer protection act. It is duty of the opposite party no. 1 and 2 to deliver/supply the packet having same weight which is mentioned on the packet. The law does not permit to sale under weight packet. The contents of chips in the packet do not represent what it should have been. She immediately lodged the complaint with Manoj Kumar in the presence of her family members and another persons and requested to replace the said chips packet with another packet of same description but he totally ignored the request made by her and directed her to lodge the complaint with the manufacturing company because the manufacturing company is only answerable for it. The packet of lays Spanish Tomato Tango Potato chips had not been opened but the weight of the contents of the chips in the said packet is less than net weight as mentioned on the said packet. Its amount to unfair trade practice on the part of opposite parties has not given any reply to the letter dated 17.11.2011 and also not taken any step to redress the genuine grievance of the complainant.
3. It is respectfully submitted that the grievance of the complainant is just, fair and reasonable and the opposite party no. 1 and 2 totally failed to discharge their duty and supplied underweight packets in the market, which amounts to deficiency in service on the part of the opposite party no. 1 and 2 and it also comes within preview of unfair trade practice on the part of the opposite party no. 1 and 2. The cause of action arose within territorial jurisdiction of this Forum. The complainant after arriving at Patna went to shop and after weighing the packets found that the packet is under weight and from Patna she lodged a complaint with the opposite party no. 1 but no step has been taken by the opposite party no. 1 to redress the genuine grievance of the complainant. The opposite party no. 1 and 2 has not produced evidence in support of their written statement. In such situation it cannot be proved that the statement made in written statement is fully correct.

We have narrated the entire facts of this case in aforementioned paragraphs. We have also carefully gone through the detail facts asserted by the respected parties in their complaint petition, written statement and rejoinder.

It is the case of the complainant that on 03.11.2011 he has purchased 1 packet of Lays New Classic Salted Potato chips and 1 packet of Lays Spanish Tomato tango Potato Chips from the shop of one Manoj Pan Bhandar situated near Jehanabd Station Road, Jehanabad.

It has been further asserted that the complainant firstly opened the packet of Lays New Classic Salted Potato chips and found only few slices were in the packet. Thereafter he did not opened the other packet of Lays Spanish Tomato tango Potato Chips and got it weighed and the same is underweight. Opposite parties in their written statement have categorically denied the allegation of the complainant that the product is underweight and have asserted that opposite parties company complied all international standards prescribed for food processing industry and packaging machine used by it are improved within built accurate weight load cells and all regularly are stamped by weight and measures department for its accuracy.

It has been further asserted that electronic balance used by it have readability of 0.01 gm with accuracy level of 1 gm with auto calibration facility in the same.

Thus the quality of the aforesaid items i.e. Lays Spanish Tomato tango Potato Chips has not been challenged rather the weight has been challenged.

The facts asserted by the opposite parties with regard to the balance used for weighing the product i.e. Lays New Classic Salted Potato chips and Lays Spanish Tomato tango Potato Chips and stamping of the balances by weight and measure department has not been denied by the complainant.

In the whole of complaint petition it has not been disclosed that the complainant had got weight from which balance or from which authorized organization meant for it. It has not been stated that aforesaid item have been weighed in presence of authority of weight and measure department, hence we do not find safe to give finding with regard to deficiency of opposite parties due to aforesaid reasons.

It is needless to say that the allegation made by the complainant comes under the definition of unfair trade practice and for recording any finding in such a matter requires reliable evidence which is lacking in the whole complaint.

Apart from it we have also noticed the facts that Manoj Kumar who is proprietor of the aforesaid shop has not come before us to support the allegation of the complainant.

In view of the facts and circumstances we have no option but to dismiss this complaint petition.

                                        Member                                                                   President