BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

CACHAR :: SILCHAR

Con. Case No. 51 of 2014

            Ali Reja Osmani, ……………………………………………………        Complainant.  

                                                                        -V/S-

1.         Future Retail Ltd.

            Home Office 4^th Floor, Tower-C, 247 Park,

            LBS Marg, Vikhroli (West) Mumbai-400083.                                            O.P No.1.

2.        Future Retail Ltd.

           03-097, 4^th Floor, Block No.BG, Plot No.5,Action Area-1B

           Block by Block Shoppin Gmall, P.O. New Town

           (Near Indian Oil Petrol Pump), Kolkata-700156.                                       O.P No.2.

3.        Store Manager, Big Bazaar,

           Goldighi Commmercial Complex,

           Silchar, Cachar-788005.                                                                                O.P No.3.

Present: -                                Sri Bishnu Debnath,                                                 President,

District Consumer Forum,

                                                Cachar, Silchar.                                            

Mrs. Chandana Purkayastha,                      Member,

                                                            District Consumer Forum,

                                                            Cachar, Silchar.                                            

                                                            Shri Kamal Kumar Sarda,                           Member,

                                                            District Consumer Forum,

                                                            Cachar, Silchar.                                            

            Appeared :-                Complainant self

 Sawkat Sultana, Advocate for the O.Ps.

                         Date of Evidence………………………..    27-03-2015, 05-05-2015

                         Date of written argument………………    15-05-2017, 19-06-2017

                         Date of oral argument…………………..    19-08-2017

                         Date of judgment………………………..     06-09-2017

JUDGMENT AND ORDER

                              Sri Bishnu Debnath,

1. Ali Reja Osmani, the complainant brought the complaint U/S 11 and 12 of the Consumer Protection Act, 1986 (C.P.Act) against Future Retail Ltd. Home Office, Mumbai, Future Retail Ltd. Kolkata and against Store Manager, Big Bazaar, Silchar for award of compensation of Rs.75,000/- for unfair trade practice toward the complainant. The above O.Ps are referred as O.P No.1, O.P No.2 and O.P No.3 respectively in this judgment.

2. Brief facts:- The complainant is possessing a payback Account No. 9401-1553-8159-4702 to avail reward point on purchase from Big Bazar. Accordingly, the O.Ps published a price list for monthly Bachat Bazaar, Bachat offer for 1st July to 8^th July, 2014. As per that offer price of Golden Harvest Atta 5 kg was Rs.140/-. He purchased 5 kg of Golden Harvest Atta on 4^th July, but the O.P No.3 charged Rs.150/-. In a different incident on 8^th August the complainant purchased New Rin Fabric whitener. MRP for the product was Rs.48.00 but the O.P No.3 charged Rs.50.00. The said incident of negligent and deficient service standard by the Future Retail Ltd. caused great mental agony, mental harassment inconvenience and pecuniary loss to the complainant. The complainant had trusted the O.Ps with highest level of expectation but totally shocked at the breach of trust and negligent service standard. Hence, brought this complaint.

3. The O.Ps submitted their joint W/S denying the alleged fact of negligence and disservice or unfair trade practice. Of course the O.Ps admitted in their W/S that O.P No.3 charged excess Rs.15.00 for Golden Harvest Atta and charged excess Rs.2.00 on New Rin Fabric Whitener. They stated that the said excess charge was happened due to system defaulter or in other word they stated that in large scale retail establishment across the nation and world this incident of date mismatch might have occurred due to system or technological error on rare occasion. On occasion of such unfortunate incident the O.P rectifies the same as soon as such error is reported or identified and arranged the refund of any excess price charged. But the complainant never approached the O.Ps rather directly approach the District Forum and the answering O.Ps got the knowledge of aforesaid incident after receiving the notice from this District Forum. Accordingly, the plea of the answering O.Ps that there is no cause of action against the O.Ps as the complainant did not give the O.Ps any opportunity to verify and resolve the dispute as such there in no deficiency of service.

4. The complainant examined himself as P.W-1 and exhibited cash memos vide Ext. 2(ii), cash memos vide Ext. 3(ii) and other relevant documents. The O.Ps also examined Arindam Bhattacharjee as D.W. After closing evidence both the complainant and O.Ps, the Ld. Advocate of the O.P submitted written argument. The Complainant also submitted written argument. We have also heard the Ld. Advocate of the O.P in absence of the complainant because the complainant did not turn up at the time of taking up of the case record for oral argument.

5.  In this case from the evidence on record it is revealed that the fact of obtaining payback account by the complainant is admitted by the contesting O.Ps. It is also admitted fact that the contesting O.Ps published Monthly Bachat Bazaar offering Rs.140.00 for 5 kg of Golden Harvest Atta for the period from 1^st July to 8^th July vide Ext.2(i). It is also admitted fact that complainant purchased Golden Harvest Atta 5 kg and New Rin Fabric whitener and the contesting O.P No.3 charged Rs.155.00 and Rs.50 respectively. The complainant exhibited cash memo vide Ext. 2(ii) and 3(ii) respectively. The contesting O.Ps did not challenge both the document rather admitted that O.P No.3 charged excess of Rs.15.00 and Rs.2.00 respectively. However, the plea of the contesting O.Ps that excess money was received due to default in the computer system. But at the same time, they took another plea that it was done without intention and could be rectified and arrangement might be made to refund the excess amount to the customer if the customer approach the O.P No.3.

6. From the above record it is revealed that the complainant did not approach to the O.Ps for making arrangement for refund rather brought the instant complaint on 29-09-2014. That is why the Ld. Advocate of the O.Ps submitted that there is no cause of action against the O.P for disservice or deficiency of service or unfair trade practice.

7. After perusal of evidence on record, written argument of the parties and consulting the provision of C.P Act, we do not find any special restriction given to the complainant to bring the complaint against the O.Ps on receiving the refusal response of the O.P in respect of remedy sought for by the complainant or in other word there is no express provision in the C.P Act, 1986 to compel the complainant to approach first to O.P to satisfy the relief sought for and if the O.P refused to satisfy the relief the complainant will get the gate pass to institute a complaint case before the District Consumer Forum. However, Section 24A of the CP Act,1986 provide the period of limitation which lays down in Section 24 A(i) that the District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within  2years from the date on which the cause of action has arisen. The Supreme Court in V.N Srikhande V/S Anitasena Farnandes (2010)11 SCALE 138 held that the term ‘cause of action’ used in the Section 24A(i) has not been defined in the Act. The same has to be interpreted  keeping in view the context in which it has been used an object of the legislation. Keeping in mind the above view of the Supreme Court, we are of opinion that when the cash memo issued by the O.Ps charging excess amount on receiving the cash from the complainant on 4^th July,2014, the cause of action arose and subsequently a further cause of action arose on 8^th August on receiving the cash with excess amount. So, the complainant has got the right to lodge the complaint within 2 years from 4^th July, 2014. As the CP Act did not define the cause of action with any restrictive meaning of refusal of the O.Ps to satisfy the relief sought for by the complainant, so, the complainant need not require to approach the O.Ps and may directly lodge the complaint before the Consumer Forum within a period of limitation in view of the provision of Section 24A(i) of the CP Act,1986. In the instant case the complainant without approaching the O.Ps directly lodge the complaint against them before this Consumer Forum within the period of limitation. Thus, this complaint case is entertained and plea of the O.Ps that there is no cause of action is rejected.

8. In view of above discussion and observation it is concluded that the O.P No.3 charge excess money from the complainant without any justification. The plea of the O.Ps is that it was happened perhaps due to system defect without their knowledge. But after perusal the evidence on record, we do not find any convincing material to conclude that the system really betrayed the O.P No.3. It is the burden of the O.P No.3 to establish the plea beyond reasonable doubt that system betrayed beyond control of the O.Ps at the relevant time. The O.Ps are dealing with big retail outlet and receiving cash from the customer or in some cases maintaining transaction cash less by using their computer system. If the computer system is betraying without the knowledge of the O.Ps and receiving excess money from the customer the O.Ps may earn huge amount excess to the real retail sell price and in contrary if system receive less amount than the actual sell price the O.Ps may suffer huge loss. But from the evidence on record, we find any intense brought by the O.Ps that due to system defect on a particular date the O.Ps receive less amount then the actual sell price and suffered a huge loss. Thus, we are compelled to presumed that the system functioning is well within the control of O.Ps otherwise the O.Ps cannot run the business for long time by bearing huge loss of earning.

9. Therefore, in the instant case in view of the evidence on record, we find the unfair trade practice of the O.Ps towards the consumer including the Complainant. Hence, to deter the O.Ps from unfair trade practice and deficiency of service and to provide justice to the complainant, we are of opinion that Rs.25,000/- as compensation is a justified amount. Thus, the O.Ps are both jointly and severally liable to pay compensation of Rs.25,000/- within 45 days from today. In default, they are to charge with interest @10% per annum on the awarded amount till realization of full amount.

10. With the above, this case is disposed of on contest. Supply free certified copy of the judgment to the parties. Given under the hand of the President and Members of this District Forum and seal of the Office of the District Forum on this the 6^th day of September, 2017.