ORDER

(Per: Mrs. Veena Sharma, Member):

This is an appeal under Section 15 of the Consumer Protection Act, 1986, against the order dated 21.08.2014 passed by the District Forum, Haridwar in consumer complaint No. 136 of 2013.  By the impugned order, the District Forum has allowed the consumer complaint and directed the opposite parties to pay to the complainant a sum of Rs. 1,00,000/- as compensation and shall deposit Rs. 5,00,000/- as penalty in the District Forum within a period of one month from the date of order.

2.       Briefly stated the facts of the case are that the complainant-           Sh. Ramesh Kumar had purchased a bottle of Dabur Sharbat-e-Azam from the opposite party No. 1-Vishal Mega Mart on 13.04.2012 for a sum of         Rs. 105/- vide invoice No. 068/302/0000002440.  The price of the said bottle was only Rs. 80/-, whereas the Vishal Mega Mart’s employee charged Rs. 105/- instead of Rs. 80/-.  On one side of the said bottle a slogan was written that “Rs. 25/- revised Lower MRP Rs. 80/- incl. of all taxes”.  The complainant informed the employees of Vishal Mega Mart and responsible person on the same day, but nobody paid heed and deny to accept their mistake. They also denied to return the extra amount which they have illegally charged. The complainant tried to contact the Branch Manager of opposite party No. 1.  It was replied that the Branch Manager is not there and he was advised to contact next day. He personally contacted the opposite party No. 1’s employees several times, but nobody paid heed.  The complainant was deprived to use of said Dabur Sharbat-e-Azam and due to misconduct and fraud of Vishal Mega Mart’ employee, due to which the complainant suffered harassment, mental agony and economic loss. Aggrieved by this act of Vishal Mega Mart, the complainant has filed a consumer complaint before the District Forum, Haridwar to refund Rs. 25/- with interest, as the Vishal Mega Mart has taken Rs. 105/- instead of actual amount of Rs. 80/- and Rs. 16,000/- towards compensation.

3.       The opposite parties filed the written statement before the District Forum and have pleaded that the consumer complaint filed by the complainant is based on false and frivolous grounds.  The complainant has to put cogent evidence that in fact he was overcharged.  There is not a shred of evidence filed to substantiate that he had actually returned the said Dabur Sharbat-e-Azam bottle back to the opposite party No. 1. The complainant has come forward with the complaint of overcharging and not for the contents of the product sold was defective or not upto the standards prescribed. Hence, there is no question of complainant having been deprived of the contents of the said Dabur Sharbat-e-Azam bottle, except for mere allegations of harassment, mental agony, irreparable loss etc.  There neither exists any deficiency in service on the part of the opposite parties nor any cause of action for the present consumer complaint has arisen.

4.      The District Forum on an appreciation of the material on record, allowed the consumer complaint vide order dated 21.08.2014 in the above manner.  Aggrieved by the said order, the opposite parties-appellants have filed the present appeal.

5.      We have heard learned counsel for the appellants and respondent in person and also gone through the record.

6.      Learned counsel for the appellants-opposite parties has submitted that the District Forum has failed to appreciate the facts of the case.  In the grounds of appeal, the appellants-opposite parties have stated that the District Forum below has simply gone by the averments of the complainant and has not taken into consideration the defense submissions raised by the appellants.  It was, thus, incumbent for the complainant to have adduced in evidence the impugned bottle to substantiate plaint allegations.  However, this with oblique motives was not done. There is not a shred of evidence filed to substantiate that he had actually returned the said Dabur Sharbat-e-Azam bottle back to the appellants.  The complainant has come forward with the plea of fraud.  The Consumer Forum has no jurisdiction to decide such complaint where the plea of fraud is alleged. In the present case the complainant has concealed and craftily pleaded of having been deprived of the said bottle which in fact he is not.  Hence on this ground alone the consumer complaint filed by the complainant is to be dismissed. It is well settled law that the damages awarded have to commensurate with the losses, if any.  However, in the present case there is no corroborative evidence filed to lead to any conclusion with regard to the extent of the loss, if any.  The damages awarded do not commensurate with the losses, if any, which the complainant is alleged to have suffered.  Over charging, if any, is for      Rs. 25/-, whereas the damages awarded for a sum of Rs. 1.00 lac plus     Rs. 5.00 lacs as punitive damages.  Loss, if any, do not bear any correlation with the amount of damages awarded which is approximately 4000 times the projected alleged loss, if any, and huge punitive damages beyond proportion.  

7.      The respondent in person has argued that he had purchased some items including the bottle of Dabur Sharbat-e-Azam from the Vishal Mega Mart.  The appellants have overcharged Rs. 25/- on the bottle of Sharbat-e-Azam.  He informed the employees of Vishal Mega Mart and responsible persons on the same day, but nobody accepted the mistake. They also denied to return the extra money, which they have charged illegally.

8.      There is no dispute with regard to the fact that the respondent had purchased some products from the appellants on 13.04.2012 for a sum of Rs. 387/-. The price of the said bottle of Dabur Sharbat-e-Azam was       Rs. 80/-.  The only dispute is with regard to the fact that the complainant was overcharged for the said bottle or not.

9.      The respondent has filed the copy of the bill dated 13.04.2012 for a sum of Rs. 387/- (paper No. 4/2 in the District Forum’s record). 

10.    The appellants have filed an affidavit of Sh. Prakash Khanduri, Departmental Manager of Vishal Mega Mart, Rajpur Road, Dehradun (paper No. 16).

11.    From the perusal of the evidences filed by the parties, we are of the view that the District Forum was justified in allowing the consumer complaint filed by the complainant.  However, the compensation of        Rs. 1.00 lacs and a levy a penalty Rs. 5.00 lacs awarded by the District Forum cannot be justified.  

12.    Learned counsel for the appellants has cited a decision of Hon’ble National Commission in the case of Amit Swami vs. Coca Cola India Ltd. & Ors.; II (2007) CPJ 256 (NC).  In the said case, the National Commission has held that the reliefs granted by Consumer Fora enumerated in Section 14 of Consumer Protection Act, 1986.  The Commission cannot pass any order for levy of penalty being credited in Consumer Welfare Fund.  This citation is fully applicable in the instant case.

13.    We considered the submissions made by the learned counsel for the appellants and respondent in person. The disputed product which was overcharged by Vishal Mega Mart in an intentional manner comes under unfair trade practice.  

14.     The District Forum has properly considered all the facts and circumstances of the case and has rightly allowed the consumer complaint per impugned order. Further, the compensation of Rs. 1.00 lac as awarded by the District Forum, appears to be on very higher side.  We reduce it to        Rs. 5,000/-.  Accordingly, the impugned order needs modification.  Order to pay Rs. 5.00 lacs as punitive damages is liable to be set aside.

15.     For the reasons aforesaid, the appeal is partly allowed.  The order impugned dated 21.08.2014 of the District Forum in respect of punitive damages of Rs. 5.00 lacs, which is to be deposited in the District Forum is set aside and the compensation of Rs. 1.00 lac is reduced to Rs. 5,000/-.  The order is modified accordingly.  No order as to costs.