KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 362/2023

JUDGMENT DATED: 23.08.2023

(Against the Order in C.C. 221/2022 of DCDRC, Kottayam)

PRESENT:

SRI. AJITH KUMARD.                                                     : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

 APPELLANTS:

1. Procter &Gamble  Home Products Pvt. Ltd, Sy 280, Penjerla Village, Kothur Mandal, Ranga Reddy , District, Telangana- 509228.

2. Procter & Gamble Home Products Pvt. Ltd, P & G Plaza, Cardinal Gracious Road, Chakala, Andheri (E) Mumbai- 400099, Maharashtra Rep By its MD.

(By Advs. Sharan Shahier &R.Suja Madhav)

                             Vs.

RESPONDENTS:

1. Rahul R., S/o V. R. Raveendran, Vengalloor House, Eravinalloor P.O,

Puthuppally, Kottayam- 686011.

2. Homely Mart, Near Kalathikkadavu Bridge, Kollad, Kottayam, represented by its Proprietor.

JUDGMENT

SRI.  RADHAKRISHNAN. K. R :MEMBER

          This is an appeal is filed u/s 41 of the Consumer Protection Act, 2019, by the first and second opposite parties in C.C. No. 221/2022 before the Consumer Disputes Redressal Commission, Kottayam (District Commission for short). As per the order dated 21-03-2023 the District Commission allowed the complaint and directed the first and second opposite parties as follows:      

“(1) We hereby direct the opposite party to discontinue and not to repeat the unfair trade practice by publishing any deceptive or misleading advertisement.

(2) We hereby direct the opposite parties to refund Rs. 105/-, the amount which is collected in excess by the opposite parties from the complainant along with 9% from the date of the complaint till the date of  realization.

(3) We hereby direct the first and second opposite parties to pay Rs.  50,000/- to the complainant as the compensation.

(4)  The first and second opposite parties are directed to pay Rs. 2000/- as cost to the complainant.

(5) The 1^st and 2^nd opposite parties are further directed to pay Rs. 1,00,000/- as punitive damage to the State Consumer Welfare Corpus Fund  within one month.

The order shall be complied with within 30 days from the date of receipt of copy of the order.  If not complied as directed, the amount for cost and compensation will carry 9% interest from the date of order till realization.”

2.  The complaint pertains to alleged unfair trade practice by the opposite parties by misleading advertisements to promote the detergent products of opposite parties/appellants.  The complainant had purchased 2 litre Ariel Front Load Matic Liquid Detergent (“2L+500ML Free”) from the third opposite party on 16-09-2022 by paying an amount of Rs. 595/-.  According to the complainant he got attracted to buy it only due to the attractive offer of extra 500ml  ie 2.5 litre at the price of 2 litre printed on the bottle of the product.  The opposite parties had stated in the front side of the bottle containing 2.5 litres of Ariel, which is displayed for sale, as “500 ml free” in an attractive manner and MRP is shown as Rs. 605/- and Rs. 302.50 per litre is shown on the backside of the bottle. So, customer is made to believe that they offered 500 ml of the product free and that the customer can save Rs. 151.50 being the price of extra 500 ml which is free. However, the complainant realised that the opposite parties are misleading the customers when he purchased one litre bottle of the product with MRP of Rs. 250/- only on 17.09.2022.  Thus actual price for two litres comes to Rs. 500/- only whereas opposite parties are collecting Rs. 605/-. They have collected an excess amount of Rs. 105/- over and above the actual price of 2 litres of the product. It was alleged that the opposite parties have committed unfair trade practice to the public by printing and distributing such a deceptive advertisement on its product, with an intention of unlawful enrichment.

3. The complainant filed proof affidavit in lieu of chief examination and marked Exbts.A1 to A6 on his side.  Proprietor of the 3^rd opposite party filed proof affidavit in lieu of chief examination.  There was no documentary evidence from his side.  Though notice was served on the first and second opposite parties they did not appear before the Commission and filed their version and so they were declared ex-parte.  On the basis of the unchallenged evidence against the appellants/first and second opposite parties, the District Commission passed the impugned order.  Aggrieved by the said order first and second opposite parties have filed this appeal.

4.  This appeal is posted before us for admission.  We have heard the learned Counsel for the appellants.

5.  The learned counsel for the appellants submitted that as there was a delay in filing the version, appellants were declared ex-parte.  They filed IA 42/2023 before the District Commission, to set aside the ex-parte order, which was dismissed on 08-02-2023.

6.  The learned counsel further submitted that the products of the appellant company are not price controlled and are free to price different variants at different prices as per their discretion.  The 1^st respondent/complainant had not been able to discharge the onus bestowed upon him under the Act to prove any unfair trade practice.  He had not produced any material to suggest any loss or injury suffered by him due to any negligent act of the appellants.  There was no wilful fault, imperfection, shortcoming or inadequacy in the nature and manner of performance nor the same can be inferred or was established on the part of the appellants. The complaint was filed on an experimental basis and the appellants are dragged on for an unnecessary litigation. The learned counsel argued that, no reasonable opportunity was afforded to the appellants to put forward their case before the District Commission.  It was submitted that the appellants have cogent evidence to prove their case and therefore, it is necessary that an opportunity is provided to them to place and prove their case.  There is no deficiency or unfair trade practice on the part of the appellants.  The learned counsel for the appellants prayed for allowing the appeal and setting aside the order of the District Commission.

7.  We have considered the submissions of the learned counsel for the appellants and perused the records.

8. The primary issue in this case is regarding service of notice to the opposite parties and filing of their version within the statutory period. Though notice was served on the opposite parties/appellants by the District Commission, they did not appear or contest the case.  It is stated in paragraph 2, page 4 of the order of the District Commission as under:

“Upon notice third opposite party appeared before the commission and filed version.  In spite of receipt of notice from this Commission the first and second opposite parties neither care to appear before the commission nor to file version.  Hence the first and second opposite parties are declared as ex-party.”   

9. We notice that according to the District Commission, as specifically stated in the order appealed against, the appellants had received notice and despite receipt of notice, they did not appear before the Commission.  Therefore, the District Commission proceeded to consider the complaint after setting the first and second opposite parties ex-parte.  The appellants have not been able to place any material or evidence before us to show that the above statement of the District Commission is erroneous in any manner.  The order of the District commission is as per section 38(3) (b) (ii) of the Consumer Protection Act, 2019, which is reproduced below:

“38 (3) The District commission shall, if the complaint admitted by it under sub-section (2) of section 36 relates to goods in respect of which the procedure specified in sub-section (2) cannot be followed, or if the complaint relates to any services,-

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District commission;

(b): if the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District commission, it shall proceed to settle the consumer dispute –

1. on the basis of evidence brought to its notice by the complainant and the opposite party, if the opposite party denies or disputes the allegations contained in the complaint, or
2. ex-parte on the basis of evidence brought to its notice by the complainant, where the opposite party omits or fails to take any action to represent his case within the time given by the Commission.”

In view of the above specific provision, we do not find any error in the order of the District Commission.

10. Further, we notice that this is a case in which no version has been filed by the appellants within the statutory period, though they had received notice from the District Commission.  Therefore, in view of the dictum laid down by the Constitution Bench of the Apex Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020)5 SCC 757, it is not possible for them to file a written version now.  For the above reason, there is no point in admitting this appeal or calling for the Lower Court Records. This appeal is therefore dismissed.

The amount of statutory deposit made by the appellants shall be refunded to them, on proper acknowledgment.         

AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        BEENA KUMARY. A         : MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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