F.A. 54 OF 2013 &
F.A. 55 OF 2013
Heard the learned counsel for the appellant. None appears for the respondent.
2. These appeals are filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Since, both appeals are similar filed by two complainants, they are dispose of this common order. Hereinafter, the parties to these appeals shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the complainants had purchased the water pouch from the market duly manufactured by OP No.1. The complainant alleged that the water pouch manufactured by OP No.1 has no ISI mark. Since, the water pouch is contaminated and having no ISI mark, it is hazardous for use by public. So, the complainant filed complaint.
4. The OP No.1 appeared and denied all the allegations. It is further averred by OP No.1 that the complainant is not a consumer under the Act and it has no deficiency in service or unfair trade practice, as such denied his liability.
5. OP No.2 is set ex-parte.
6. OP No.3 appeared and denied the case of complainant.
7. After hearing both the parties, learned District Forum has passed the following order:-
Xxxx xxxxx xxxxxxx
“In the result the petition of the complainant is allowed on contest against the OP No.1. We therefore issued a “Cease and Desist” order against the OP No.1 directing him to stop such a practice forthwith and not to repeat in future.
The OP No.1 is ordered to pay a cash compensation of Rs.10,000/- to the complainant and also to pay a further sum of Rs.5,000/-(Rupees five thousand)only as penalty for the deficiency & unfair trade practice committed by the Op No.1 in marketing, manufacturing and sale the water pouches and this amount will be utilized for the development cost of the Forum drawn in favour of the President, Dist. Consumer Forum, Rayagada.
This order shall be complied within 60 days from the date of receipt by the OP No.1 failing which coercive action as provided U/S-25 & 27 of the C.P. Act will follow.
To strictly implementation to the laws under Prevention of Food Adulteration Act the Collector-cum-Chairman,District Consumer Protection Council,Rayagada, and the Executive Officer, Municipality,Rayagada, as well as Food Inspector,Rayagada are ordered to stop the hub of illicit manufacturing of water pouches and ordered the Ops to registered under BIS,ISI also order to stop such manufacturing to adhere safety and quality standards in other places of Rayagada District.”
8. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not considering the written version filed by the OP with proper perspectives. According to him the complainant is not a consumer because it is not proved from whom he has purchased the water pouch. Moreover, the impugned order is also illegal inasmuch as it has not considered whether the container of water pouch produced by the complainant or the OP. Learned District Forum ought to have considered that OP No.1 is yet to start the production and the question of contamination same is far from truth. Learned District Forum has not applied judicial mind to the fact and circumstances of the case. The complainant has not sent water pouch for laboratory test as required under the Act to find out the contamination of the water. Therefore, he submitted to set-aside the impugned order by allowing the appeal.
9. Considered the submission of learned counsel for the appellant, perused the DFR and impugned order .
10. The main point for consideration in this case whether the complainant is a consumer
(2) whether the complainant has proved that OP No.1 is manufacturer of water pouch and same has been contaminated.
11. The complainant, in order to prove the case has not examined himself but only relied on the complaint. On perusal of the record it does not appear whether he has purchased the water pouch, there is no money receipt available to show purchase of the water pouch. Therefore, we are of the view that the complainant has failed to prove the purchase of the water pouch from OP No.1. Section-2(d) of the C.P.Act is as follows:-
“Consumer” means any person who -
- buys any goods for a consideration which has been paid or 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;
12. In view of the aforesaid provision of law the consumer has to prove the purchase of the goods allegedly to be a spurious one. When the complainant failed to prove purchase of same as per Section-2(d)(i), we are of the view that the complainant is not a consumer of said water pouch. Moreover water pouch in question is not filed. Even if assuming argument shake that the water pouch has been produced by the complainant, same neither belongs to OP No.1 nor lack of ISI mark. Therefore, the allegation has not been substantiated by the complainant. No step has been taken by the complainant to send the same water pouch to the expert opinion as required U/S-13 of the Act.
13. In view of aforesaid discussion, while deciding the issue No.1 & 2, we are of the view that the complainant is neither a consumer nor he has proved the water pouch sold without ISI mark and same is contaminated.
14. In view of aforesaid discussion, the impugned order is liable to be set-aside and it is set-aside.
The appeals stand allowed. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the Confonet or Website of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
