DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Consumer Complaint No. 22 of 15.1.2019

                                      Decided on:   28.11.2019

Atul Bansal, aged about 34 years, son of Sh.Raj Kumar Bansal, resident of House No.2, Street No.1, Model Road, Nabha, Tehsil Nabha, Distt. Patiala.

                                                                   …………...Complainant

                                      Versus

1.       The Big Bazar (Future Retail Ltd.,) Omaxe Mall, Mall Road, Patiala Tehsil & District Patiala.

2.       The Consumer Service Manager, HALDIRAM SNACKS PVT. LTD., C-31, Sector 62, Noida-201307, Gautam Budh Nagar (Uttar Pradesh.

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Smt.Inderjeet Kaur, Member

                                      Sh.B.S.Dhaliwal, Member                                   

ARGUED BY:

                                      Sh.Yogesh Khatri,Advocate, counsel for complainant.

                                      Sh.M.P.S.Sahi,Adv. counsel for OP No.1.

                                      Sh.Rishabh Sharma,Advocate, counsel for OP No.2.

 ORDER

                                    B.S.DHALIWAL, MEMBER

1. This is the complaint filed by Atul Bansal (hereinafter referred to as the complainant) against The Big Bazar (Future Retail Ltd.), and another           (hereinafter referred to as OPs) under Sections 11 to 14 of the Consumer Protection Act,1986(hereinafter referred to as the Act).
2. Briefly, the case of the complainant is that on 13.11.2018, he purchased the TIN of Haldiram’s product namely CHAM CHAM SWEET weighing 1 Kg vide Batch No.H01RG290518B from OP No.1, manufactured by OP No.2 for an amount of Rs.200/- inclusive of all taxes vide invoice No.3684003000001040.
3. It is alleged that the  manufacturing date of the product is 1.6.2018  which was to be expired after five months i.e. on 1.11.2018. It is further alleged that it is the duty of the retailer i.e. OP No.1 not to sell the products on counter which had already expired and secondly it is the duty of the wholesaler i.e. OP No.2 to bring out the products from retail outlets within the time period when the same product has got expired.
4. It is further alleged that after knowing the said illegality, the complainant approached OP No.1 and informed about the same but OP No.1 instead of listening the complainant misbehaved with him.Thus there is deficiency in service and unfair practice on the part of the OPs.
5. It is further submitted that the complainant through his counsel has also got served legal notice dated 19.11.2018 upon the OPs but inspite of service of the same the OPs did not reply the same . Thus the act and conduct of the OPs caused mental agony and harassment to the complainant.
6. For these sufferings the complainant has prayed for giving a direction to the OPs to pay Rs.2,00,000/- as compensation alongwith any other relief which this Forum may deem fit. Hence this complaint.
7. Upon notice OPs appeared through their respective counsels and filed written reply.
8. In reply OP No.1 raised preliminary objections  and at the outset denied all the allegations, facts and averments stated in the complaint; that no cause has arisen in favour of the complainant to file the present complaint; that the complaint is not maintainable; that the complainant has concocted a  false story by concocting and distorting the facts and circumstances of the present case; that the complaint is being filed with clear cut intention to harass the OP and to extort money from the OP; that the present complaint is false, frivolous and vexatious besides being devoid of any merits and has been filed with a view to malign the credential and reputation of the OP with dishonest intentions to detriment the OP and the same is liable to be dismissed.
9. On merits, it is stated that it is matter of record that on 13.11.2018, the complainant had purchased the product i.e. TIN of Haldiram’s namely Cham Cham Sweet weighing 1 kg. as alleged in the complaint.
10. It is denied that manufacturing date of the product is 1.6.2018 or the same was expired after five months i.e. on 1.11.2018. There is no deficiency in service or unfair trade practice on the part of the OPs.
11. After denying all other averments made in the complaint, OP No.1 has prayed for dismissal of the complaint
12. OP No.2 in its reply also raised preliminary objections that the present complaint is not maintainable; that the complaint is false, frivolous and vexatious and is liable to be dismissed; that the goods manufactured by OP No.2 were delivered to OP No.1 by its Super Stockiest/Punjab Vendor namely K.R.Enterprises, New Jaimal Enclave, village Pabhat, Zirakpur, GSTN: 03AHPPG8351E2ZF. OP No.1 had sold the said good to the complainant after its expiry and OP No.2 has no liability of the same. The OP No.1 is responsible for the sale of good after its expiry.That the complaint is bad for mis-joinder and non joinder of necessary parties.
13. On merits, it is admitted that the date of manufacture the product is 1.6.2018 and same was expired after five months i.e. on 1.11.2018. It is admitted that OP No.2 is manufacturer of the good, which was delivered by Op No.1 through its super stockiest, mentioned  above.
14. It is submitted that on 6.6.2018, OP No.1 Future Retail Ltd.  has placed the purchase order with K.R.Enterprises,Zirakpur Punjab Sale Vendor and OP No.2 had delivered the goods to the said Punjab Sale Vendor and receipt of receiving goods was sent by OP No.1 on 14.6.2018.
15. It is admitted that on 14.6.2018 OP No.1 had officially received all the items which are mentioned in the purchase order including 156 Packets of “Cham Cham” vide article No.3000/13329 through purchase order No.4518046388 dated 6.6.2018 and good receipt note No.8130817861 dated 14.6.2018.
16. It is submitted that OP No.2 is the manufacturer of the good and provided the OP No.1 within time.OP No.1 had sold the said good to the complainant after its expiry and OP No.2 has no liability of the same. There is no deficiency in service on the part of OP No.2.
17. After denying all other averments made in the complaint OP No.2 also prayed for the dismissal of the complaint.
18. In support of the case, the ld. counsel for the complainant has tendered into evidence affidavit of the complainant, Ex.CA alongwith documents original bill, Ex.C1, original product,Ex.C2, copy of legal notice, Ex.C3, postal receipts Exs.C4 and C5.
19. On the other hand, the ld. counsel for OP No.1 has tendered into evidence Ex.OPB, affidavit of Amit Kumar Jha.
20. OP No.2 tendered into evidence Ex.OPA affidavit of Vikram Verma alongwith documents, Ex.OP1 copy of receipt of receiving goods.
21. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully. They have reiterated their stand as taken in their respective pleadings.
22. However, the ld. counsel for OP No.1 specifically contended that on the invoice Ex.C1, the “Bar Code” is not mentioned and the complainant has produced an expiry product purchased from some other shop/outlet and shown as purchased from OP No.1 against bill (Ex.C1).
23. Ld. counsel for OP No.2 contended that OP No.2 is the manufacturer of the product and same was delivered to OP No.1 by their super stockiest/Punjab Vendor namely K.K.Enteerprises,Zirakpur. The OP No.1 has sold the said product to the complainant after it’s expiry and the OP No.2 has no liability of the same. OP No.1 is responsible for the sale of goods after its expiry. Ld. counsel for OP No.2 submitted that the date of manufacture of the product is 1.6.2018 and the same was expired after five months i.e. 1.11.2018. The product alongwith other items was delivered to OP No.1 by the stockiest on 14.6.2018 in lieu of the purchase order placed by OP No.1 on 6.6.2018. OP No.1 had sold the expired product on 13.11.2018 and OP No.2 has no liability for the same. There is no deficiency on the part of OP No.2.
24. Ld. counsel for the complainant restricted his arguments to the averments made in the complaint. He contended that upon noticing expiry date on the product , the complainant  immediately approached the OP to rectify the mistake but the OP No.1 instead of taking remedial steps misbehaved with the complainant. The complainant without any wastage of time approached an advocate and narrated the entire episode who after dictating the notice dated 17.11.2018 issued to the OPs on 19.11.2018 under registered cover. The OPs neither rectified their blunder nor responded to the notice. It is pleaded that the OP No.1 has its own software and what is to be generated or what are not to be generated depends upon their requirement and the consumer has nothing to do with it. This is the first and only complaint filed by the complainant and he is not a regular litigant. It is pleaded that due to deficiency and unfair trade practice, the complainant has suffered harassment, humiliation etc.
25. We have given careful consideration to these rival submissions.
26. The admitted fact is that the product in question (Ex.C3) was manufactured on 1.6.2018 and expiry date after five months was 1.11.2018. Invoice dated 13.11.2018 establishes that the complainant has purchased HDRM SWT CHAM TN 1KG for Rs.200/-on 13.11.2018.The same product was kept in safe card board duly sealed by this Forum at the time of filing of the complaint. The same was opened before the ld. counsel for the parties. Its particulars i.e. manufacturing date, expiry make and price etc. have been tallied with figures given above and found the same.
27. The purchase of the product as per version of complainant on dated 13.11.2018 is not denied. The only plea is taken that the complainant has submitted the expiry product instead of the purchased product vide invoice, Ex.C2.It is further contended that the product in question does not contain the Bar Code of the product sold by OP No.1. The product Ex.C3 is in the possession of this Forum from the date of filing the complaint. The OP No.1 never inspected the said product in this Forum and seen only on the date of arguments. Further the complainant purchased the product on 13.11.2018 and sent a legal notice within a very short span of four days through registered cover. On the receipt of the legal notice, OP No.1 should have spontaneously responded if he had any such assumption or apprehension as they are taking ground of defence now. Software which generates the invoices are developed as per the requirement of OP No.1.What is to be generated out the billing machines, the consumers are nothing to do with it.
28. Further when the OP No.1 is so sure that the product in question is not the one sold by it vide invoice Ex.C2, then why he tries to shift the responsibility of selling the expired product upon the manufacturer. This is like blowing hot and cold in the same breath. To prove his version (OP No.1) that the product in question is not the product sold vide Ex.C2, the OP No.1 should have come forward with some affirmative evidence instead of shifting his responsibility upon OP No.2.
29. OP No.2 has clearly stated in its written reply that on the purchase order dated 6.6.2018 of OP No.1, the stockiest of OP No.2 delivered the product on 14.6.2018 including HALDIRAM SWEET CHAM CHAM TIN 1Kg alongwith other items vide Ex.OP1. The OP No.1 has sold the product to the complainant after its expiry and the OP No.2 has no responsibility of the same. The OP No.1 is responsible for the sale of goods after its expiry. While taking the versions of OP No.2 in totality, it is established that the product in question was sold by OP No.1 to the complainant. OP No.2 filed alongwith affidavit (Ex.OPA) and receipt of receiving the goods by OP No.1(Ex.OP1) was submitted in this “Forum” on 30.5.2019 whereas the OP No.1 filed its written version accompanied with affidavit of the representative subsequently on 13.6.2019 and the OP No.1 has not controverted the pleadings of OP No.2 in any manner, therefore, inference is drawn that the product in question was sold by OP No.1 to the complainant.
30. The version of OP No.2 is sufficient to testify that the product in question was the same as supplied by their stockiest to OP No.1. It is established that the OP No.1 had sold the expired product ( Ex.C3) to the complainant. We have to see and examine the responsibility of the manufacturer (OP No.2) in such situations. OP No.1 in its reply tried to transfer the responsibility on the shoulders of the manufacturer (OP No.2) and the OP No.2 being manufacturer denied it on the ground that the manufacturer has supplied the goods well before the expiry period. It is a simple proposition that it is the seller who can take care whether the selling food are expired or not and it is the duty of the seller not to sold the expired products. How a manufacturer knows that any of the seller is selling the expired goods. There is no system prevalent in this regard. It is for the seller to return the goods which could not be sold before the expiry date of the terms and conditions permitted.
31. In view of our above discussion net conclusion is that the OP No.1 has sold the expired product to the complainant and OP No.2 cannot be held liable for any deficiency in any manner.
32. Thus allowing the complaint we direct the OP No.1 as under:

1. To pay Rs.200/- as refund ;
2. To pay another sum of Rs.5000/- as compensation inclusive of costs for causing harassment, inconvenience and mental agony to the complainant which also includes litigation expenses.

iii.   The OP is also burdened with Rs.10,000/- as a punitive measure which shall      be deposited by them in the Army welfare Fund Battle Casualities as per the details of bank account given below:

Fund Name: Army Welfare Fund Battle Casualities

Branch Name:Syndicate Bank

Branch Code:9055

IFSC Code:SYNB0009055

Account No.:90552010165915

33. That the complaint is dismissed qua OP No.2.
34.  Order be complied by the OP No.1 within a period of 45 days from the date of the receipt of the certified copy of this order. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.

The complaint could not be decided with the stipulated period due to heavy pendency of cases.

ANNOUNCED

DATED: 28.11.2019

                                           B.S.DHALIWAL                  INDERJEET KAUR

                                           MEMBER                              MEMBER