DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 8th day of September 2021
Present : Sri.Vinay Menon.V President
: Smt.Vidya.A, Member Date of Filing: 29/01/2018
CC/13/2018
Hamza Chemmanam,
S/o.Late Muhammed
14/146, Palm Plaza,
Kalmandapam
Palakkad – 678 001 - Complainant
Vs
1.Bismi Hypermart Electronics & Fashion
Rep.by its Branch Manager
Near Stadium Bus Stand, CBE Road,
Palakkad – 678 001
2.V.A.Ajmal
The Managing Director,
Bismi Group,
Head Office, Bismi Chambers,
Desabhimani Road, Kaloor,
Kochi – 682 017 - Opposite parties
(By Adv.T.J.Lakshmanan)
O R D E R
By Sri.Vinay Menon. V, President
- Complaint averments bereft of details is to the effect that the complainant came across an advertisement floated by the first opposite party in Malayala Manorama Daily News paper dated 06/01/2018 “BISMI ON SALE upto 50% OFF” in 4 full pages marketing supplement. In the said advertisement the price of Sardine (Chala) was shown as Rs.40/- per kg. Upon reaching the first opposite party Hyper market for purchasing the fish, the staff of the opposite party billed him Rs.160/- for 2 Kg of fish i.e. effectively Rs.80/ per kg in total variants to the advertisement floated by the first opposite party. As the complainant was not having enough money, the complainant had to return with 1 kg of fish. The complainant aggrieved thereby filed the complaint seeking a compensation of Rs.50,000/- and incidental reliefs.
2. Opposite parties entered appearance and filed version to the effect that the complainant was not a consumer as contemplated under the Consumer Protection Act as he had not purchased anything from the opposite party. The complainant had never visited the opposite parties and not purchased any product for consideration. This Commission lacks the authority to adjudicate on the issue as the complainant has alleged cheating on the part of opposite parties since proof of committing cheating required elaborate evidence which is not contemplated under a proceeding before this Commission. The complainant is not entitled to any of the reliefs sought and the only Forum before which the complainant can seek redressal of his grievance is the Civil Court.
3. On the pleadings and counter pleadings the following issues arise for consideration
1.Will the allegation of fraud debar the authority of this Commission?
2.Is the complainant a consumer as contemplated under the Act?
3.Is there any deficiency in service on the part of the opposite parties ?
4.Cost and Compensation, if any ?
4. Evidence adduced by the complainant was marked as Ext.A1 to A5. Complainant was examined as PW1. Ext.B1 series (a to c) was marked on the part of opposite parties.
Issue No.1 :
5. It is trite law that when there is an allegation of fraud this Commission loses its jurisdiction to adjudicate upon the fact of the case. The opposite party has produced a judgment rendered by the Honourable NCDRC in CC/206/2011 and CC/207/2011 (Bright Transport Company V/s Sanghli Sahakari Bank Ltd.) Gist of this judgment is that when fraud is alleged it would require voluminous evidence and such a matter should not be adverted to for adjudication by a Consumer Forum. With all due respects to the judgment rendered by the National Commission, we wish to highlight the fact that this judgment cannot be made applicable in this case.
6. Section 17 of the Indian Contract Act also deals with fraud in addition to the fraud contemplated under section 420 of the Indian Penal Code. The offense of fraud has both Civil as well as Criminal ramifications. Here, in this case, we are only concerned with the Civil remedies available to the complainant where he was allegedly deceived to act based on Ext.A1. To that end it does not require any voluminous evidence. This Commission has jurisdiction to adjudicate on the issue. The authority of a Court to deal with fraud on both Civil and Criminal facets is considered by the Honourable Supreme Court of India in paragraph 44 of the judgment in General Manager, Electrical Rangali Hydro-Electric Project, Orissa V/s. Sri.Giridhari Sahu & Ors. reported in 2019 (10) SCC 695. Hence we hold that inspite of the plea of fraud this Commission can adjudicate this complaint. Issue No.1 found accordingly.
Issue No.2 :
7. Ext.A1 is the newspaper supplement showing the advertisement with regard to the subsidized prices of the commodity sold by the opposite parties. On perusal of Ext.A1 it is seen that the price of Sardine is reduced from Rs.100/- to Rs.40/- for two days namely 6/1/2018 and 7/1/2018. Placing of this advertisement is not opposed by the opposite parties. Ext.A2 is the receipt dated 06/01/2018 issued from Fresh Fish and Meat. The opposite parties seriously contest the complainant’s averment that he is a consumer of the opposite parties. Other than this, there is no whisper of a plea as to the authenticity of Ext.A2.
8. At this juncture it would be pertinent to refer the documents filed by the opposite parties and marked as Ext.B1 series. The tax invoices pertains to various items, but not Sardine. Had the opposite parties a clear case that the purchase of the complainant was not made in their Hypermarket and that the bills issued by them were different, they ought to have produced invoices issued on 6/1/2018 or 7/1/2018 containing purchase details of Sardine on 6/1/2018 and 7/1/2018 to successfully contradict the case of the complainant. Having not done so, we hold that the opposite party has failed to prove their case that the complainant is not a consumer. Furthermore the opposite parties does not have a case that Ext.A2 was not issued from their market. They also failed to plead that Fresh Fish and Meat is an entirely different entity from that of the first opposite party. So we hold that the complainant is a consumer of the OP1 Hyper market.
Issue No.3 :
9. Ext.A1 clearly shows that the opposite parties have undertaken to supply Sardines worth Rs.100/- for Rs.40/-. But Ext.A2 bill would show that 1kg Sardine is valued at Rs.80/- and not Rs.40/-. The complaint was forced to cough up an additional Rs.40/- inspite of the representations held out by the opposite parties in various media.
10. One argument adopted by the counsel for the opposite party is that nowhere in the advertisement is it stated that it is price of the 1kg sardine that is Rs.40/-. Such a plea is not made in the version. We find it difficult to accept the contention of the counsel for opposite party in this extent. When an advertisement is made with the common man as its target group what is to be kept in mind is the measurement units that are commonly adopted in common parlance. One of the pages of the Ext.A1 advertisement shows a number of articles which are all weighed at 1kg. It does not stand to reason as to why the opposite party would content at the hearing stage that the price of half Kg of Fish. Such an ambiguity, if made deliberately, is made solely with intention to deceive the complainant and his like. In such a case the advertisement will have to be read in favour of the person who read it and understood it in a common man’s parlance.
11. In view of the above arguments, we hold that there is clear deficiency in service and unfair trade practice on the part of opposite parties 1 & 2. Issue No.3 is found in favour of the complainant and against the opposite parties.
Issue No.4 :
12. The conduct on the part of the opposite parties in advertising the Sardine for Rs.40/- and thereafter charging Rs.80/-, as already stated supra, is a clear unfair trade practice for which the complainant is entitled to be compensated sufficiently. We hold that an amount of Rs.10,000/- (Rupees Ten thousand only) as compensation and Rs.2,500/- (Rupees Two thousand five hundred only) as cost would suffice in the facts and circumstances of the case to alleviate the grievance of the complainant.
In the result the complaint stands partly allowed to the extent stated above. Time for compliance is 30 days from date of receipt of this judgment.
Pronounced in the open court on this the 8th day of September 2021.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 – Advertisement published by the OP in Malayala Manorama daily marketing
supplement dated 6/1/2018
Ext.A2 series (with objection) – Original Bill and the attested copy of the said bill issued by
the respondent No.1 to the complainant
Ext.A3 series – Copy of notice sent by the complainant to the respondent NO.1 with original
AD card and Postal receipt. Dtd.6/1/2018
Ext.A4 – Receipt of the complaint No.2018/2811/9 issued from the District Collector office,
Palakkad dated 17/1/2018
Ext.A5 – Letter from District Collector Palakkad on file No.2018/2811/9 dated 18/1/18
Exhibits marked on the side of the opposite party
Ext.B1 series – a) Duplicate tax invoice No.4H20000005466 dtd.28/12/2017
b) Duplicate tax invoice No.4H40100006380 dtd.10/01/2018
c) Duplicate tax invoice No.4H50100014912 dtd.14/02/2018
Witness examined on the side of the complainant
PW1- Hamza Chemmanam
Witness examined on the side of the opposite party
NIL
Cost : Rs.2500/- allowed as cost.
NB : Parties are directed to take back all extra set of documents submitted in the
proceedings in accordance with Consumer Protection (Consumer Commission
procedure) Regulations, 2020.
